ING ee ee 








IN THE . 


Supreme Court of Illinois, 


Aven Term, A.D. 1913. 





LA SALLE COUNTY CARBON COAL bus ent 
COMPANY, Circuit Court, 
Appellee, La Salle County. 
v8. ee 
Honorable 
SANITARY DISTRICT OF CHICAGO, S. C. Stough, 
Appe liane. Presiding Judge. 





ABSTRACT OF RECORD. 


EDMUND D. ADCOCK, 
BURNET M. CHIPERFIELD, 
Hie | ATTORNEYS FOR APPELLANT. 
“CLAUDE E. CHIPERFIELD, 
FRANK J. QUINN, 

| or COUNSEL. 





BARNARD & MILLER PRINT, CHICAGO. 


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bt SF ay 39 
det tad 





27°75 
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eH 


THE UNIVERSITY 
OF ILLINOIS 
LIBRARY 


From the library of 
Harry Harkness Stoek 
Professor of 
Mining Engineering 
1909-1923 
Purchased 1923. 


558.2 
L352 





Digitized. by the Internet Archive 
in 2021 with funding from 
University of Illinois Uroana-Champaign 


httos://archive.org/details/lasallecountycarOOunse 





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INDEX. 

Page of 

Record. 
Pemameniata.deciaration (first) 2.4 so... 6. ob. ads cam ele 0 8 18 
mmendment to declaration (second)..........0ds sees. cee yas 
appearance of Chiperfield and Quinn.... 2.2... 6.0 cee wees 27 
Appearance of all attorneys except Chiperfield and Quinn 

ea ENCE VET een Us oa <a Wisi an eretotties Micnt s erate gs aden Riv ks a 28 

Arguments, plaintiff’s opening (O’Conor)........80....6. 364 
eteumoents, plaintiit’s closing (O’ Conor). . ois. 2.5. ee. ¥e- 4686 
Mreuments, plaintiff’s closing (Butters)............-ece.« 4559 
Arguments, defendant’s opening (Chiperfield)............. 325 
Arguments, defendant’s closing (Chiperfield)............. 4601 
Arguments in re attorneys’ fees (Chiperfield)............. 5025 
Arguments in re attorneys’ fees (O’Donnell)............. 5034 
ee NST OT is CMR OTT OLE. artis ope self efe)e se sles» 6 6 Satererk tin we 5050 
Amendments (see orders of court). 
Beat A PPOMSLC. COULG es 2s... ce ce ces oe once megieiers 111 5045 
ete SLO SPAM (COULL e.. cisco sce ds oh ee Gee ew ewe 110 5045 
ar noys? FOGGe MOUION. 10 TAX. 2 i oe el eaten edness 4813 
Ball of exceptions, on change of venue..........c.eedenen- 46 
SeOL IT CXCOMeUC PCOMOlAl uni as e's vases + oss oc cnieehinges « 113 
ipillsor exceptions, time allowed... o46¢c.6. ccaawetweesuaes 111 
Wonreaict, Duneam etal. with plaintiffs. .......c<esecses oe. 4870 
RN eel (BRE, ON ihn anise id nilaiy « Sudwin a Hee He as > 417 
eMC Peete DOSILAONS 6 cai. ek odoin do od +s eo vives Bivins dew bee 1237 
PEER COR CUSHEAUO TING DS6 012 (0%0 51557 aid oe 0.6.4 0 o.6'aio win tev eae oes 2787 
eee a omOie Cleric FO LOCOLG.. ace cele ews oti ay a Scones 8 5049 
Condition of crops before 1885 evidence stricken.......... 1807 
SmEPGLOl VOUGO, POLILION FOP. oc... soso + ois non wn ess siemmcsys 46 
Shame of venue, motion overruled ....... 2. .eesaswcwentiens 44 
Caapeomoreyenne, bill.of exceptions... 2... .ee.csv etwas 46 
Demurrer to evidence, close plaintiff’s case................ 2646 
Demurrer to evidence, close of all evidence............... 4553 
Demurrer (see orders of court). 
NRE, CMR TOMES diosa G9) e's Ginas is. oi vid sus) cisely: gh dw canis wen bg eg 4513 
Seerieiner S850. Certam lan dsia. . «sei du qerde sim eine eek fs iccale 2583 
SRE OG PORTE CALE TOs 2.1 aise o'r 252 vin Sa haVHs suginn'e gages since 1237 
Depositions (see witnesses). 
Deeds (see exhibits). 
Deeds, objections to, stated..... iene tlelicdie iT ea eheia BS nee 529 


Page of 
Abstract. 


10 
18 
11 


11 
25 
1008 
1008 
26 
1008 
1134 
1135 
1137 


23 
22 
1071 
14 
24 
23 
1109 
32 
257 
600 
1136 
341 
14 
14 
14 
545-6 
1004 


966 


503 
257 


87 


11 


Exhibits—Plaintiff’s. 
Pageof Page of 


Deeds: Exhibit— Record. Abstract. 
1. Young tol. CP CAOS CG. yen teas eho eens 440 43 
ee Ban rn Oe 0 oer OR Oe en ern A A RS es iy 450 52 
4; White:to 1) V2, C200, ae .ctra cane oe eae ieee ere ee 456 56 
5. White. to ciavieC wont sn teaie ce seen ieee 2 eee 462 59 
6. ..Wicker=tollVe COACOrameweas eh ccs sl ouiem whats pe 468 63 
1. » Dolley tos ly oeGn Gott te 8 aa orate ee eee ee 472 66 
8. Neustadt sto: sNeustadte... i <0e eee  ee ee 476 70 
92): Neustadt tovlV; °C; (Cos. . 3c co ces fee ener repens 484 75 

Pantenburg-to* Sale. 22 hc oa seer ee nei ee ree 2172 406 
2: -Charter si. 8.10: Co Gy Co. as cence ee ence 417 32 
10.0 sPhoto-sspull way i..f2 ee. satis tite wae ee eee eee 601 96 
11.. Phototcontrolling: works ©. woe oe ee eee 602 98 
12. Photo Jetterson:street: Dridve:) 3.5 es) ee eee 603 100 
18. Photo drainage channel). .26 ee ee 2509 490 
19.. “Photo Bears Trap  Damii¢-c2.. cnc e es eee 2510 490 
20. sPhoto, Windage “basin 72) vate 2511 490 
13. \Irwin’s mapoe ets oes coe oe, ee ee 818 184 
14, Cooley’stabulationg: 222) tse 4 ec een ence 2252 427 
15... Blue “print mine sissies. 5 oe et eee eee 2296 436 
16): Blue print -uniongmines <2... ewer als ere 2297 436 
17. , Blue. print) Rockwell mines. ee eee 2298 436 
21.. Claim for damages... oa ay < ccc re eee 4843 1084 

House document, 83 pages, 187-193...........:... 2270 432 

Plat books pages 24% oc ses aan eee ene terete 2282 433 

Book 300, miscellaneous records (Young’s will).. 2314 444 

Tax; TOGELDES) c:iis. 5a nia e's ceee een ce opener eee alee ee 2302 439 


Exhibits—Defendant’s. 
Maps: Exhibit— 


22:  MtaLan OL WIBCONSIN:. , wees eer eae weit eee 2790 598 
Os? bale OL UNCIGN A at shoes cic eee ee ee 2791 598 
Ae me LINTOUS yt Pea ois yee Oe > eI ate ae eee 2792 598 
wo. Watershed’ ...°2000 52 cietitnseieies a he trometer nnieee 2793 600 
262). Urainage: districts. "“i cece «= vise ie eee eee 2951 640 
39, Hennepin drainage Wistrict.... vrs eee 3168 702 
40° Partridge ‘drainaresdisiricis: vi ocr ec ere 3169 702 
475 Bast: Peoria drainave districh, 72.4... ote. eee 3170 702 
42, -Sprmo lake ‘drainage district...) <oms: ee ee 3171 702 
43. lhacey. drainage: district io nics ..su sc eke haloes, ae 3172 702 
44.- Coal Greek drainage istrict: iann se. weg ieee ae 3173 702 
45°) Cran6.Creokwarainave, district, Vasc ee eee ee 3174 702 


46, 
A”, 
48, 
49, 
50. 
51. 
52. 
53. 
54, 
55. 
56. 
57. 
58. 

280. 

281. 
282. 
283. 
284. 
285. 
286. 
288. 
289. 
290, 


Lisi 
Exhibits—Defendant ’s—Continued. 


McGee Creek drainage district.................. 
NCObMCOUNGY OrainavG, CISlriCts «asia eines wis ides os 
Bere riven ti, CIAINS OG" OISETICH cn. ni. eeReOn Eos fins a 5.0 00s 
Prey ew, Urainage CIStliCh.en . sti 6G vA f.0S > oon 
Prarie woll sOfagInave. CIStriCt.c cine sc mcr ss sins «ots 0 
PN OA PABUGSIUR COM CISEINCL ate sy less baie 0 nie nas ¥ erm «u's 
PITA] GraiNave OIStTICh vs sxc s ecient as ss dbs et e.s.0) 
INGE WOOP AINA CGS GIStliGh. 5s veg ssid, chs aihataue & 
Piette CVG Oral iStli@h «20 cls wis e's apse ecg oe 
Seem cUme Cd rainNa ve Ost iGbs assem ces a.» kiss s Wi eee es 
EO me TOC TArAIM AIG TCISLTICL. cscs aes ss oe cen Os 
Oirera noon drainage. CIStTICh. . ced sre secs 6 ohn ees 
Haren slough dramage. district. os... nna e sine 
MEE SSE OLL SNAPS ate ae e te alan «Poe Sop we ates # ake 
Paes EL AT Se ity el Sata wore s arele eia 8, Sin sp nicer spe shay tm 
PU Gasper AA eC AT i yere ei ec Aefers ie. 6 soln alesse soe 2 
Dil Pan etait ale ar ta ya. G20 «5's vs sare Sothink Se 

ie POSS EROCEECIERUEEEC cen ee oe cco oars fayes, < wea veais's ss 
Ons HOCKIOUs GLAU Leoginttihs «sds vale Sa sw Ae os ct. « 
RIG FAG) aitinileg sap eh = Be 8S eae a oe 
ESR AMUSO MISE Oe BUIV OY 1.584.520 bie ac sce 5 bie a eo ate 
eG me ANOLON een file cin’ cfe tia isa es aa ss een ees 
Mien oa SE CEC meee ted etewe, SAVE ICR wig tied ae hates @ Santos. « we 


Photographs: Exhibit— 


27. 
28. 
29. 
30. 
31. 
32. 
33. 
34, 


ee EMOMBIOIELEI Cl MN One Les che ea cise ee ue eee cab oe oso 
Rie Pere ISP PVOL ON Oxia em i sh es ew siete 8 wlcavate wy iste dics 
ree ASOP LCG ON Orie eta he's cial oc som okels cone eins tte 
IOV sym POMO DIStTICLs 2 sate sie ie ate wath. ois wiesend ahs tree ws 
Pee CEL CCL ULL CIh loc <trers sualtinions c's rnie «gee.e sjates, 3.5 
Pa LOO POOLE CIS srerice areta 575. claer chauie is PRG IE ble 6 Hints ass 
aeRO WUILC Ia tne Wate a aie arcu ores olka so ctoleic ca: oan’ 9S 
Prreieed SGU we OitGHY irs oe seb lsatars 0 a's eles. 0/6 n'eerammre eels 


eee | Seer HOTGS EDV ODONGCED a. one Gig <a 5 <.cce icin don aro 


Rainfall data: 
Pere CECA Ea xt e's aoe eg Hele ee Crea bls sos oaths a ats 
REPT ea GE ike ALLO, Sere ee oe been ee cise Con nice oo oe ooo 
MI ECS Lene aye cle sic ie cee Melon «cir eae sta cies scp p<» 


River gauges: 
BPMN EL OOS S EOL tn cs ics aisle és 6 Sass adie ois so) a tietaals “a 
Braet Mier imme nn ee teen A ase es ona 
House Document 83, pages 189-191......... See are eee 


Pageof Page of 
Record. Abstract. 
3175 702 
3176 702 
3177 702 
3178 702 
3179 702 
3180 702 
3181 702 
3182 702 
3183 702 
3184 702 
3185 702 
3186 702 
3187 702 
3727 825 
4014 870 
4424 953 
4425 953 
4433 956 
4434 956 
4445 956 
4451 958 
4452 958 
4511 966 
2983 650 
2984 650 
2987 652 
2988 652 
3010 658 
3010 658 
3014 660 
3014 660 
3647 817 
2686 557 
2701 566 
3374 750-53 
PES | 581 
4084 882 
4273 926 


iv 


Exhibits—Defendant’s—Continued. 


Government permits, etc.: Pageof Page of 

Exhibit— Record. Abstract. 

59. Permit irom Governor Tanner.) eee ee ee 3316 727 

60. Permit-trom secretary, Ol, Wali sceee cui aie 3318 728 

625.“ COnmmunica tion: La.j0r v Weare ene cree 3322 731 

62.4, Communicatipn, “Secretary sh00U, tee ec es 3327 734 

63... Order rerulaving Tow ele-b-Olis ecw ot Ree es oe ae 3330 736 

64, Order-regulating Hows t-3 108s... dave cent 6 wie sek 3334 739 
Financial statement (envelope), Exhibit 35........... woe, aoe 687 
Finantial statement, Exhibite30 = .c 1.0. see cone eens 3129 687 
Financial statement (letter), Exhibitea(v.> sn. = ace oe 3130 689 
Financial statement (envelope), Exhibit 38............... 3132 690 
Evidence as to condition of crops before 1885 stricken..... 1807 341 
Finding: ontmotron to tax attorneys” fees... sna eee. se eth 5044 1135 
Miles insevidence (see: pleadings)... :..2+ uss. 4 see 4995 1131 
HOTS OLPVErdict ox Le. % + ais teie, ona ale-a). ctw slete alaios eeemeseg ene 4793 1052 
Instructions, peremptory, end plaintiff’s case.............. 2646 545 
Instructions, peremptory, end all evidence................ 4553 1004 
Instructions, plaintiff’s given.............. cee 4747 1015 
Jastruetions,..defendant’s - Pively, va. => gut. . cm eee 4756 1023 
Instructions, -defendant’s ‘refused... 2... 0. ore ewe) toes eae 4771 1035 
Jurors accepted: 

Conlson, George: Ws vs -ate's<.b oarale cpanel inten Seer ee ares 291—296 

Damnlap, ‘J ageieent .: s oes) heer t tia via eee: eee 224—254 

PEW IV OT) 'a) o Wares a. oe .+aaore estos women eter Ge far ora Sete eee tee 174—204 

eran ikon bwin) lis ete ee ete oat eee Pe eee 156—164 

Gotch, THOSSS cise. nes cckec cts pets ee caine fete alee 341—347 

GyBen, sd Asem sot Oa etek ths eis aoe Re ee ee 169—200 25 

Latigan Mae ehetik ete eae teal eee eee ee 329—334 

MeBlroy ss Wins eights sector a wae | ane cee ene eaee a ee 145—176 

Sehrumpihy, CO. Cet eh id cae eerie eee ee eee ee 241—250 

Voipund od. 25... tae Sta ee ee eS oye ee ee 308—324 

WEE) AR BSN rr ars: Gas Pee TMi train iy feels nc. 219—258 

W aber lin gy ABs) :o5 5 ae ee peeete oie erat naary aes eee 298—316 
Jury sworn. 
Judgment on {verdict (in record) .-an vnc sae oe ee ee 110 22 
Judgment on verdict (in bill of exceptions)......:....... 5024 1134 
Judgement on verdict, (exception: tO), i5.5.5--..-5. eee ere 5024 1134 


Pageof Page of 


Motions: Record. Abstract. 
Morieavawo tile ples, nul, tel, GOTD a vena casaccatare $2 116 24 
Pec eroe Of VON. adnan lash. 89s 6980 Wer ladies vege 49 14 
For a continuance (taxing attorneys’ fees)........... 4824 1074 
For judgment non obstante veredicto................ 4808 1068 
RUM BUEN Me eg win on Sh ilne win eg siete sky <iuie's bale BNA 4808 1068 
EEL eMC Sale fons nls con sohce sive wie Co tales a ones 8 6 we hiss 4795 1055 
To withdraw motion for new trial... .4.6..4..0++0.6.% 4808 1068 
By plaintiff to assess attorneys’ fees................. 4813 1071 
Moremore specitic bill of particulars: ?2:i73-2) 2526322: 4823 1074 
DPC CAMARGO Ae fan aN eee cael cee Cannes Oe Need oe 4824 1074 
Pomerat Miye (UOUTIONG yo. i se eas sete eke te eh eee es 6 oe 4831 ' 1079 
PRUE OKDROLeteInonton ts net fe etc ree hee See esa. 4812 1070 
omneriseeCOoley/6 .GPOSiLIONs .6. 6.05 cceseveoee ces 2235, 4552 422, 1003 
To exclude all evidence as to overflow, 1900 to 1912.2601, 4516 513, 973 
To exclude all evidence as to overflow each year from 

MRL Leigh ee ia oS ain Pict a bash a eas Bd 2602, 4518 514, 974 
To exclude all testimony as to quality of crops prior to 

subsequent to filing declaration..........6..... 2606, 4521 516,07 
To strike from declaration part Sec. 14 S. of Canal.. 2581 503 
To strike from declarations Lots A, B, C, ete........ 2582 503 
To strike certain descriptions from declaration... .2583, 4521 504, 977 
mee GIUMe eCOLUHIN OXAIDIGI es eo Ds nie saw eden es 2594, 4512 509, 969 
To exclude testimony of each witness as to overflow 

SEA OCe FCM I te re once n 6 5, oho Sieh 's, os ne eas s 2599, 4521 512, 977 
PovesuCassaiiendsitOn1 G00 ANG LI0G. ce sa eee cos 2599 512 
Bere xCiINGe DALGUNG one WV. 14 PL os ice dees 2606, 4521 517, 978 
Piece part W.55, 9. 1. 14, 24h. cease ees nese 2608 519 
To exclude testimony of Means et al. as to values. .2609, 4522 519, 978 
Mo exclude testimony as to Ogden Dam:........... 2645, 4551 544, 1002 
To exclude testimony on plat 13 on account variance.2645, 4552 545, 1003 
To exclude evidence end plaintiff’s case.............. 2646 B45 
To exclude evidence end all evidence................. 4553 1004 


Orders of court: 


Sustaining demurrer to declaration............. Ae 17 10 
Overruling motion for change of venue............... 44 14 
Bre tarde erOUlLCAsOUM isa. .i0, wera. hee cares = ten ew te 62 15 
Sustaining demurrer to fourth plea................... ie 18 
Seaver LO yamesmh GCoclaration:. «0... .06e5. sss sss ¢evieess 74 18 


Demurrer of plea of statute of limitations to amended 
declaration sustained; defendant abides; leave to 
file plea nul tiel corporation, denied; demurrer to 
POUT eh eetIStALUO Gas sie t9OR Saks some Seed wh cre 85 20 


Granting leave to re-file pleas, replications and rejoind- 
SYS ape ee re aes Sat iets Simo so) ss grass < eie'b wis a toes 6% 85 20 


v1 


Pageof Page of 
Record. Abstract. 


Calling for trial |, \.c2 awe aew mam vale Oates Riva isleme eats 87 


Leave to withdraw motion for new trial; denying mo- 
tion for judgment n. o. v.; denying motion for new 
trial and }motion in Carrest-.5 1.5 ee ge ee 106 


Rule to file bill of particulars on attorneys’ fees....... 109 
Denying rule for more specific bill of particulars and 
FOTSCONTANUANCE.. 2, am. ce iee Bat nee ere ene 110 


For entry of judgment denied; protest by defendant 
against proceeding; hearing on order fixing attor- 


neyabsfebs ein hin on han.onies = teat una eerie 110 
JUAPMONL SON VOLdiGhs 2 cirri da 4 ua se uteete ae eerste ere ele ee 111 
Finding and order on motion to fix attorneys’ fees.... 110 
Prayer for.appeal iictoes ate see ea eles nies ee 110 

Plaintiff ‘rests “420,095 scene sete ese 2a Sete ats «i proline artes takers 2590 
Photographs (see exhibits). 
Placita, judgment term’. ven was bea acte Os lt ene ee 84 
Points in support of motion for new trial................. 4796 
Petition for change of yonue... iv... .. e+ «catamaran 46 
Pleadings: 
Leave to re-file pleas, replications, rejoinders, ete...... 85 
Praecipe, 1:14:05 or5 siete ox ais sin = sien 9 0 Sclare ee. yen 1 
Summons and -Teturn, io14-05 Jae s she. « cee erent 
Declaration, 114-05. 1). xara «nso ee Capen ote eect 4 
Demurrer,toxdeclaration,;3-15-05 7... wer ae eee eee 13 
Amendment to declaration, 10-25-05... 9 eee 18 
Demurrer to amended declaration, 12-30-08............ 29 
Piga, generakaseue, 9-42-09 0 i. wie mews a oi Palas an se oe 37 
Pies, statute ot limitations, 9-4-09.)). on. ola sss tales 38 
Piea; non-gwuership, 94-09). cn oso sug sae nee eee 40 
Replicatiqus gest 6-12 "cs ie aes wis arags Wes oan g ee 63 
Rejoinder to replications, B=1-1 Bes Sela tenn: ee 66 
HMourth ‘plea tita vires, 3-1-1250 25.92. cw sss 68 
Demurrer-to courth plea; 3-11-12). a, ee ee 72 
Amendment to declaration, 3-21-12................... 75 
Defendant’s fourth: plea, 5-13-1233, Pees oe a ale 80 
Signature of court to bill of exceptions (change of venue).. 55 
Signature of court to bill of exceptions (general).......... 5048 
Stipulations. to. depositions... ..7sescrtess eet ues 541, 1242 
Tender, bill of exceptions (change of venue).............. ty 


Tender, bill of exceptions (general) 70.4 2 a. seme cee es 5048 


20 


21 
22 


22 


23 
23 
23 
23 
507 


20 
1055 
14 


1136 
90, 258 
14 
1136 


Vii 

Witnesses—Plaintiff’s. Page of Abstract. 
Direct. Cross. 
REY ge awe in SEN a ono sinina out meee eee Enis eles © or 372 375 
NETO Gf Soa Sree ces fal dw ov, as nee WO SBR ST ig ae 8 te Se 341 344 

Seneca PUGDOSIGION ir s.c0 «css cecsa 04 whee se ooh cere 254 
eS aS re 2 ee Ghent eeae 498 499 
NS sass ih fiage' of co gels <= dla vas alsa he Sis a wala ede 401 402 
IE SE CEMOISI LEO Jorg ces ines Weiss s cindic's 2c eee sss ea ed 252 253 
EME tee eR CLOUSTLLOT )/ ane <'s vie ao a'ele ow Wie vaj-sces ance e see elf a 8s 259 267 
RRR UC DRTION oe ck sete st nies anew e 52 a os dels ‘ieee 275 276 
a ES RRS ae oe ae ere ere eee 297 302 
MR ER Ege clea a ob aisle Glos # Kio vie v5 ai nine Qa sgei ats 415 429 

Poem CICE CCLCTVOBICION ). , tteie wwe sw cue a slvae nea wow Vovepin.’ 356 

SEL MN He OODOSILION ) 4 ou. oc e isnle enw deme a sss bas ease 487 
a TERESERS OT all SAM Rag MR AR a A a OE 309 oid 
EE ISOM TLOUOLELION Vin. fa <s.cls.s seis acs cea 6.4.96 oie 4.6 8048 bie 90 95 
ORNS OL PN Gn rene a Ete as oi cia wis ie eho lb st nieve eee 287 288 
a CSN ee ee oe orc ete cc eee ry cecees 215 218 
Se tS Woe eaten: Oo icy le ioeciclece. 333 334 
ROG AL Oty oe reste es ssc o's oF ales 6s sais cee ese 30 (i 
Mae mR ONrt S.C TOCANOL) cae eae s fc ccs de aes cece ueees 432 433 
PTORC AT (sn TODULEAL etter elke cece dee ss aet 967 967 
(TRO WGC, Sere Si har lt a lena a 398 401 
SSSA SV atA CLOCIOG Vere econ esc cc ee cece aceeces 403 
NE re eae aaa enies hrc s-nin bib |x vise Aaie pig bas = awe 290 291 
DE LER Pacem es wie ests vic a se ws ss © em es Sa.8 508s 284 286 
Serer als ( GOPOSILION) og ono cee dies cicye,e me's re sainiaveecwens 102 103 
EE A laa en en cass vk oa vs wa say ees 183 186 
MM ET SPC TOCRUCH) 4, 5 goin iy sh ww wale en aka ns ee ase an dass 360 
EN TEE ee ag ao ka a a oy ain ook Me sw Oe ans Wass 370 371 
ECM S ao. osm, S/d 4 aR A kas oe e kk eas oss ve Sy ks 307 308 
Seema 10r ela COPOSILION ) . <<... 5 oe ew cee e nen en ene’ 174 177 
Se ss ase Gin cw ea wh a ekg wa ats Sm a ane wae A 500 501 
NN EM as Ss wn k's qo 8 Sad oh sheds wea 8 See eh as 391 392 
NN RE EN Ps na ir Cine; toms ae Aas ee ae Ooms 336 338 
RN ETP oy creo e a odes ot eater «, aks Seid is wD ea aie wes 403 405 
EARS TM 0s a's. cc sling. ain) Se Wes Benes ESA gOS 5k gS 388 389 
I eal ale 5 do ad git nis sigh OS nla MN aim an 4 Ale eo S's 381 383 
IE hha ec ciate vi ott nd Soe Dg eins oe Ga ans ns 334 335 
I AGG. Cts, | cla aiclate. « Cle'e a's Dang dis oa are we ae 334 336 
TINUE: Jel aisle, cn aly iG sian was ao whe hans eg sa nals + 229 232 
Aca aia eae eS aes cals Sane buen eee< ev ame ee Os 194 202 
MS er ECC DOSITIOIE eo vce a cs ek lah hve ee Sd gtlny Os 168 169 


© REN IIRE Wika? age og ge ih a Se hoe Aaa eS ee ee 315 316 


Vili 


Witnesses—Plaintiff ’s—Continued. 
Page of Abstract. 


Direct. Cross. 
Pyka, . Edward: co iistegis esc. a wh 5 ees cena reat ane ee neem 239 240 
Randolph, Isham -Cdeposition)}.;. ns ese ee eee 471 
Shannon, | Hdwardvien sacse: bs hss ate oes aes eee ee 221 
Shannon, “Mdward 92% fests. oN tien eee eee eee 322 325 
Smith: Rensda ae sake te ees Mile ee tea ayaa ey eee 502 502 
BOB A LONI: ie. acta mins 6 0: siete dt path als oe aaa ase ia ae ee 221 223 
Reed; ‘Rollinw1s.. (deposition) it ew. ccm, wow oo abe oke wee 109 167 
hrar Grae cof eee So tajags a Nie iste «1 Sikes ee ee 365 366 
UnZGK Or, ROD ORG ae. css velanase «a sels: dee aeedieg eee eee ce 272 273 
Viorees, As). 207s )efels siete iets pay cocepe kal eee ne pnee voce aces Reale a eae eee 348 BDL 
Vails: Wm... A. (deposition ) ee. ao. sete ee oe ete 470 . 
Weetrans., Woeorenccpeet Baer av wk cr fare tren cinie eae ine ee 385 “386 

Witnesses—Plaintiff’s—Attorneys’ Fees. 
Brower, SU Wee Ss hed aie teow > 6 ek ee 1129 1130 
Butters, cA. Bare cs. 6 veces Sincele hm arate ay ee ne ene 1123 1124 
Dun dan, GV. lie Bhs d 5 v.03 6 eto Sia > a eke ee els teeane tee pee ee 1100 1107 
Gaincoln, © B.\ Bjic ene nn dns pe + atte 6. tos Sea ene 1125 
MeDougall, Digg cies cee tecie «trees oes he, sr nee eee Fare te 1126 1127 
Q?Conor, Ai dae. so. - ova one CRT Tate Se 1119 1121 
QlDonnell, oda Lins cs ccterien tees ei eee ie ye 1081 1091 
Witnesses—Defendant’s. 

Alger, “Lows Pitta ~, <<, sais sow ceo Paveretares havc aOR ea Neteller eee 641 644 
Batry, W. Sse een eae eee ee OP Oe niin wt hdd A ai ee 860 861 
Parlclor, Vern cis. acscsaves see eee eee eas abt 912 912 
Bentley, Whe es denn tele core ce can oa eee eee ee 615 617 
rent.) Ll, "Teese igs o de.ald x aie ane cared tat ah Nerd to A 786 
BBTOCK WAL ECA fikvics aaaei shane <i tetugmecn Ua aa ean cee oc Ler 693 695 
Garter wilt, CAVES. wist« tad een eae mee sarees ar St oiler shia dimen arreeaes 787 788 
Genter <R sell eo. San ve 0 ee oe ee Lae 790 791 
Carney x ODATIRS) oc st.peei sd ale ces ears Meee ko ak ee taser ane 855 ' 856 
Caldwell, EH, (ae 2. i Rpse ees a) ale es oe ee ee 771 773 
OW, MACHAGE ace vig wis o cuter Wee, algo we Opts eae ected Stee ee 703 705 
Oox, iW. Mi): 285.0 22 5a ne > oda oe ee . 927 928 
roster, -W. Esi sits ota vend d opnaye we Beale ove tees Ret ace 915 916 
God ys) ON VEER we adie « cad PAAR as Aalndk nete ee ae 880 881 
Cr Ptiss ly 2) steacsie ch adhe oe Soe adie a = stig ole oth ale aa aba al ea ee 954 
Daowesre, Geos. ae ae am aad eviie wee as pee nia cee. 664 668 


Bgan Di ie ates eaten too.0 twisted wie 0: alr ale aie git det aah or a noted 949 953 


ix 


W itnesses—Defendant ’s—Continued. 
Page of Abstract. 


Direct. Cross. 
GND Eig p yee Spek ooh epee ee rererreshdened se 6 920 
MIP ORM CCG asso ete o nr rec rer erie kere tees epee 675 678 
RNIN COMI ce, en gis pd koe a hele Giule pis Fire e ee 836 838 
ee nS ee oy orgie eager ere reer ees fe 841 843 
ESL SSE ae ar a a a 961 962 
NERC ORM cette ele hoe Cone ore w gle nist yl ote ote ere peut ¢ PP 629 630 
I NIL CGPMANR ats Eta ere oo Baa SFIS ae ogc es oe be Hass Fhe es 686 
RRR EGER Meg reread Ape etre osn'e ose ips pe odie e Pek whe Pee 627 628 
ERNE a een 5 OU oss ole ss pithe'> oy © ic our bible grees PAGO 638 641 
IES MEE CRIMES tee ofsi a 5a )o cleo = one Fats o ge np steer ee Se 696 697 
EE EOC os as Ss rp rhs pre's be oo vi Pole Ses oes 555 565 
SE FR OEE Oeaoie' s We ices toe be ek feo 85 it nes Pee 941 942 
RePeMOr SS OLLOG ewes ep ees rate es he has aussi he oe oi Pee ee. 932 
ene Ee ATO rl cs oe sds regs doe R eR ea taeNs oes 8 830 833 
eMC SUN Peis ea pins b= she lpg sien e bas oe > sao bs 618 622 
NE RESTS lg ge idan NO SE are aia a 741 744 
Hossack, H. bo Vie Seki ge eee ee 934 935 
REE Pe M EE sete ce iteisile tad vga er 8 seas sig ts e'sivs owee ses 963 963 
MMIC SIGN oN ey a tantey's 6 gr vc a o-y vince se ele v2 ees 6 2) 885 886 
MOUEGOM EI Ge roar est esc tres thers reererersesvers 793 795 
eR RSM feet oe ciel y visy ee ss ¥ 2 f tt V0-08 09 eo 0 04 0 EE 949 949 
RT SUR attr fee os ie sce esate des tcunsss 857 858 
Un CEC ere (gs ele d bp tse fot vs esp 4 69.0 4 olan «8 859 859 
SRA URETIG ls cig chats pp ree et scr Pet tt es ee ated ta pane vies 866 868 
NT ety clefting s overs fis vais 34 9 «.e'ly'n soa ee aka 720 722 
RP ENV eet So's a esr se eie'c 4 ees + * Ont hae 623 624 
ET ee hy ee ngs Pyle dead eg wedex tes 636 637 
Oa A Basha snes mieceeun pie Le Ge ates 872 873 
Leach, Warren W.......... an aeae Mae el 4: ates ee eee 663 664 
SIE Srey e085 0% 20s. ov cos, e( ur ece, i dat v's BFE ae ee bate 882 883 
McAndrews, John ....... iors uur eir tt Se oe eae ob re s 585 592 
NPE PERSE) oe as 5 etn s op iba goss fos eS ase Che @ 905 906 
SEs ae Tn ale eet souls ise es sas ea wate ek 936 937 
MINERS RUM Seg erste et coe eGo cy oe eg > ele ees y's es Sha <> 09 8 791 
NNER MPLA MULT tees is sons clin s Ask oes t Male sieiv e's a oak Vd dicta an 749 
REPO Coys G0 - Givi Ss weg 0 81 geese share ehive ei puts a shew ard a Oe 943 944 
MESES EE ast Spe hse 6S ob daca ade oak otis ten a see 875 876 
MM cra telat, re o.0 5.0 ¥ vise aip'edees main s Voice simus hack > 645 653 
fo. AE Sg Be eel Ie et en 5 Sete 895 897 
NEM LIE eae eg rsa tie aiaisicls «ty Mitta ens aituu' sie Ue mutes 887 888 


EMEC Let oO Seat nS oe ages ona. wine aha igie ¢ 4-8-9 esse phe se e's 653 661 


x 


Witnesses—Defendant ’s—Continued. 
Page of Abstract. 


Direct. Cross. 
Moynahan, Thos. 315.05 tx ss co% 20 tev qtt sees (siete eee noe 745 746 
Mosier, -J. (ise ocr tate ood kins sa Sea ae a eee 822 827 
Mossbatk, (Wien vs45 2 caine i500 5 ch thai Ses ooo Nee een ee ee 890 892 
Nicolet, Chaswehi. oi... <05 3 Ce ie ds PS a 850 852 
O7Conner, sCormelias. ys 4.05 tebe asus at FG Geen.) oonettet 747 748 
P6beYSOT, seimeivies siete jee st Eee sere Oe eet yeti Reutoee 565 
POWrIG; WWINY Sean att PER Eh ee ke coast cee ie Cpe ee 631 635 
POWeTs We sie te Se as 2a 0 ae eee ee ee eee 819 819 
Pusey, © Wm.) saat ob es be ee eee en ee eee 938 : 939 
Quigley, Joe! 2.2 fers leans ose eee ee dae ee 879 880 
Richards, I, Wisc. sina ieee pn eee es oes aye Se ee 722 724 
Riggs, Grant, 5s .'ssheg see ee ties « ah oe keene tes eee 625 
Rowe, Uhos.deca.nes PEUY Cay ae eer ee ee See tee iy ee 661 663 
Salter, John 05. s.'s 0s. «ete gah aie als aos saree ae sane eee 848 849 
Sargeant, C.GD?... sree ks 2 vie a at she nun + 3 attest ann eee 902 903 
Pargeant, George «1.60.8 as eb ssa ov sce ce colts etoe samen’ 948 | 948 
Strawn, Ws (Dig ea. ees aaa ane 8 os ween eo ae ae 945 945 
Strauss, (Bertie tcc ce eas vend soa tbe t thd een hee eee 874 875 
Shannon, Robert’. ve. 0-- 42 cas icee acer © pate ees 679 683 
Stempfel, Emile? . 2. </rs avtewtady gous soe fae coed ate eee Cee eee 862 864 
Shelley, M. Wik... 550.00 a ok evs peas Penne fare meine 749 
Spear, Charles”... ise cedug few canna rned laa mae ree sete 776 778 
Spencer,’ HB.  Busieate is vives ed ig ced aad 6h gt ee ea eee eae ioe 
Schultz, Ottoman: «<5. \ tala tau «oe ee ea ae 876 878 
Prey, (.. Witeeeerters cs oa dcacve'n Cope ra crete Wha Fae aoe ee eee Meee 782 786 
Taylor, Bon jiges os livs< aes cos cous verte lacs oft ieee ae 846 847 
Prat, ran kw eons 1 da se pete eae wee ce ay eee ‘ae sapna ae 601 603 
Minieman, AGG. ts sss 6 sg.0 es 5 ole ets Bt a “einle "enighy eget ateteeette tte’. 922 926 
Thesberg, Chasl (acco. bees ee ai ese eee 604 613 
Jbl 6) 0]: FAS @Pial = Eo repr eran wr aririrare nce seers Oat Pc) 857 
Wiillace, Wi cHawy. cahic oe sist te seu nis cde wed tela meta eee 712 715 
Watzler, Ah eee Perr rare Ct ice a vue a ee ett 921 
Weattiman, JONI. we cee ny dee rege d Lae pamt ete ce oer ae meee 908 909 


Warrick, Robert. ic. .4saneshss ss she at pee eee tae ae eee 946 947 








IN THE 
DEP REME COURT OF ILLINOIS, 


APRIL TERM, A. D. 1913. 


LA SALLE COUNTY CARBON COAL COMPANY, \ Appeal from 


Appellee, Circuit Court, 
mo Bi La Salle County. 





Honorable 


SANITARY DISTRICT OF CHICAGO, S, E. Stough 
. . 9 
Appellant | Veresiding Judge: 


ABSTRACT OF RECORD. 


Page of 
Record. 


1 


bo 


Praecipe for summons in the case of the LaSalle 
County Carbon Coal Company vs. Sanitary District of 
Chicago, dated the 11th day of January, 1905. Filed in 
the office of the clerk of the Cireuit Court of LaSalle 
County, January 14, 1905. Action trespass on the case. 
Damages claimed, $200,000.00. 

Summons in the above entitled cause, dated January 
14, 1905. 

Return summons showing service upon the defendant 
upon the 16th day of January, 1905, filed in the office 
of the clerk of the Circuit Court of LaSalle County, Jan- 
uary 23, 1905. 


DECLARATION. 


Be it further remembered, that afterwards, and on, to- 
wit: the 14th day of January, A. D. 1905, there was filed 
in said court in said cause a certain declaration in the 
words and figures following, to-wit: 


co) | 


SvaTe or ILLINots, ee 
LaSauLe County. : 


In THE Circuit Court, 


To the March Term, A. D. 1905. 


The LaSalle County Carbon Coal Company, by J. L. 
O’Donnell, and Dunean, Doyle & O’Connor, its attorneys, 
complains of the Sanitary District of Chicago, a corpo- 
ration, defendant, summoned, etc., of a plea of trespass 
on the case: 


Fer that, whereas, on, to-wit: The 1st day of January, 
A. D. 1904, the plaintiff was the owner and possessed of 
certain lands and premises in the County of LaSalle and 
State of Illinois, described as follows: ee. 


The following lands in township thirty-three (33) 
north and of range one (1) east of the 3rd principal 
meridian; that part of the southwest quarter and the 
southeast quarter of section fourteen (14) lying south 
of the Illinois and Michigan Canal; lots A and B of Ca- 
nal Commissioners’ subdivision of section fifteen (15) ; 
that part of the northeast quarter of section twenty-one 
(21) lying south of the Illinois and Michigan Canal and 
east of the Illinois River, and that part of the north half 
and the south half of said section twenty-one (21) lying 
south of the [llmois River and east of the bayou; that 
part of the southeast quarter of section twenty-two 
(22) lying south of the Illinois River; the northeast quar- 
ter of the southeast quarter, the northwest quarter of 
the southwest quarter, the northwest quarter of the 
southwest quarter: That part of the northeast quarter 
of the southwest quarter lying west of the right of way 
of the [llinois Central Railroad; that part of the south- 
west quarter of the southwest quarter lying north of the 
highway east and west across the same; that part of the 
southeast quarter of the southwest quarter north of the 


3 


highway across the same and west of the right of way 
of the Illinois Central Railroad; the north four and one- 
half (43) acres of the south half of the southeast quar- 
ter, all in section twenty-three (23); that part of the 
northwest quarter of said section twenty-three (23) ly- 
ing south of the Illinois River and west of the right of 
way of the Llinois Central Railroad; lot two (2) in the 
west half of the southwest quarter of section twenty-four 
(24) in said County and State, and on, to-wit: the day 
and year last aforesaid, the defendant was a municipal 
corporation, organized under and by virtue of the laws 
of the State of Illinois, and invested with certain powers 
and duties under and by virtue of the statute of the 
State of Illinois, creating said Sanitary District, and 
the various amendments thereto, and in and by the stat- 
ute creating said Sanitary District it was, among other 
things provided that said Sanitary District should be 
liable for all damages to real estate without such district 
which should be overflowed or otherwise damaged by 
reason of the construction, enlargement or use of any 
ehannel, ditch drain, outlet or other improvement, under 
the provisions of said act creating said Sanitary Dis- 
trict. 


And plaintiff avers that on, to-wit: the Ist day of Jan- 
uary, A. D. 1902, and on divers days prior thereto, the 
defendant constructed channels, embankments and out- 
lets in the counties of Cook, DuPage and Will, in the 
State of Illinois, and by means thereof caused large bod- 
ies of water to flow from Lake Michigan through said 
channels into the Des Plaines River and by reason of 
said embankments, channels and diversions, caused div- 
ers other waters to flow into the Des Plaines River which 
would not flow therein in a state of nature, and which 
said waters were all conducted through said Des Plaines 
River into the Illinois River. 


4 


And the plaintiff avers that on, to-wit: the day and 
year last aforesaid and on divers days prior thereto, 
the said lands and premises of the plaintiff were over- 
flowed, submerged and rendered wet and unprofitable by 
reason of the construction and enlargement of channels, 
ditch drains and other outlets by the defendant in the 
Counties of Cook, DuPage and Will in said State of 
Illinois, and by reason of the premises the lands of plain- 
tiff aforesaid were diminished in value to the extent of 
two hundred thousand dollars. 


And for that, whereas, on, to-wit: the 1st day of 
March, A. D. 1904, the plaintiff was the owner possessed 
of certain lands and premises in the County of LaSalle 
and State of Illinois and has been the owner of the 
same for more than two years before the date last 
aforesaid, which premises were described as follows, that 
is to say: | 

That part of the southwest quarter of the southeast 
quarter of section fourteen (14), township thirty three 
(33) north and of range one (1) east of the 3rd princi- 
pal meridian, which lies south of the Illinois and Michi- 
gan Canal; also lots A and B in Canal Commissioners’ 
subdivision of section fifteen (15) in township thirty 
three (33) north of Range one (1) east of the Third 
Principal Meridian; also that part of the northeast quar- 
ter of Section twenty-one (21) south of the Illinois & 
Michigan Canal and east of the Illinois River, and that 
part of the north half and the south half of said section 
twenty one (21) south of the Illinois River and east of 
the bayou, all being in township thirty three (33) north, 
and of range one (1) east of the Third Principal Meri- 
dian; also that part of the southeast quarter of section 
twenty two (22) township thirty three (33) north and 
of range one (1) east of the Third Principal Meridian, 
which hes south of the Illinois River; also that part of 


5 


the northwest quarter of section twenty-three (23) in 
township thirty-three (33) north and of range one (1) 
east of the Third Principal Meridian, which lies south 
of the [lnois River and west of the right of way of the 
Illinois Central Railroad; also the northeast quarter of 
the southeast quarter, the northwest quarter of the 
southeast quarter, the northwest quarter of the south- 
west quarter; that part of the northeast quarter of the 
southwest quarter lying west of the right of way of the 
Illinois Central Railroad, that part of the southwest 
quarter of the southwest quarter north of the high- 
way east and west across the same; that part of the 
southeast quarter of the southwest quarter north of the 
highway east and west across the same and west of the 
right of way of the Illinois Central Railroad, and the 
north four and one-half (45) acres of the south half of 
the southeast quarter, all in section twenty three (23), 
township thirty three (33) north and of range one (1) 
east of the Third Principal Meridian, except that portion 
of the same occupied by the right of way of the Chi- 
cago, Burlington & Quincy Railroad; also lot two (2) in 
the west half of the southwest quarter of section twenty 
four (24) in township thirty three (33) north and of 
range one (1) east of the Third Principal Meridian. 


And on, to-wit: the day and year last aforesaid, the 
defendant was a municipal corporation, organized under 
and by virtue of the laws of the State of Illinois, and in- 
vested with certain powers and duties under and by vir- 
tue of the statute of the State of Illinois, creating said 
Sanitary District of Chicago, and the various amend- 
ments thereto; and in and by the statutes and amend- 
ments aforesaid, it was, among other things, provided 
that said Sanitary District should be liable for all dam- 
age to real estate outside of said Sanitary District, 
which should be overflowed or otherwise damaged, by 


6 
reason of the turning of the waters of Lake Michigan 
into the channels, ditches, drains and outlets in carry- 
ing out the purposes for which said Sanitary District 
was created, together with the reasonable attorney’s 
fees for the prosecution of suits for such overflow and 
damages, to be taxed as costs of suit; and the plaintiff 
avers that on, to-wit: the day and year last aforesaid, 
and for a long time before that date, the defendant built 
and constructed divers ditches, drains, channels and em- 
bankments in the Counties of Cook, DuPage and Will, 
in the said State of Illinois, for the purpose of causing 
the waters of Lake Michigan to flow down the channel of 
the Deg Plaines River, and also for the purpose of di- 
verting certain waters of the Des Plaines River, which 
were accustomed to flow towards Lake Michigan, and 
other waters in the Counties of DuPage and Cook, which 
were before that time, accustomed to flow into Lake 
Michigan, down the channel of said Des Plaines River; 
and said Sanitary District, for the purpose of carrying 
out its plan and perfecting its system of drainage afore- 
said, constructed certain gates on its main channel at 
Lockport, Illinois; and on, to-wit: the date last afore- 
said, turned into the Des Plaines River and through said 
Des Plaines River into the Illinois River by means of 
said gates, and also by means of a certain channel, known 
as the river diversion, constructed by said Sanitary Dis- 
trict, large quantities of water, which were before that 
time not accustomed to flow in said Des Plaines River, 
and by reason of the turning in of said large quantities : 
of water, the lands and premises of the plaintiff herein 
before described, were overflowed, submerged, and ren- 
dered wet and unfit for use, and were, and have since re- 
mained under water, so that the plaintiff was deprived 
of the use of the same, and said lands became wet, sour, 
cold and unfit for crops, and overgrown with rank vege- 


10 


Ba 


7 


tation, to the permanent injury of the same, and were 
diminished in value to the extent of two hundred thou- 
sand dollars. 


And for that, whereas, on, to-wit: the Ist day of Janu- 
ary, A. D. 1902, the plaintiff was the owner and pos- 
sessed of the premises in the aforesaid counts of its 
declaration herein described, and then, for a long time 
before that time, had used and enjoyed the same for 
farming purposes; and said premises were adjacent to 
the Illinois River, in said LaSalle County, and on, to- 
wit: the date last aforesaid, the defendant was the owner 
and possessed of certain channels, ditches, outlets, lev- 
ees, drains and gates, by the defendant constructed, in 
the Counties of Cook, DuPage and. Will in said state, 
for the purpose of causing the waters of Lake Michigan 
to flow into the Des Plaines River in large quantities 
and through the said Des Plaines River into the Llinois 
River, and the defendant before that time had cut and 
removed earth and rock for the purpose of diverting the 
waters of Lake Michigan towards and into said Des 
Plaines River, where they had not before that time been 
accustomed to flow, for the purpose of carrying out the 
purposes for which the defendant was organized, and 
on, to-wit: the date aforesaid, the defendant being so 
possessed of said channel, ditches, embankments, levees, 
drains and gates, caused large quantities of water to be 
turned into the Des Plaines River, in the Township of 
Lockport, in Will County, Illinois, and permitted the same 
to flow in said Des Plaines River from thence hitherto; 
and by means of the turning of said large quanti- 
ties of water into the Des Plaines River, the premises 
of plaintiff aforesaid, were submerged and overflowed 
and rendered wet and unprofitable and unfit for farming 
and other purposes, and certain tile ditches which the 
plaintiff owned and used in said premises for the pur 


15 


8 


pose of draining said premises, were injured by said 
overflow, and said premises were overgrown with rank 


- vegetation and have so remained from thence hitherto, 


and by reason of the flooding of the same, said premises 
have been permanently injured and diminished in value 
to the extent of two hundred thousand dollars; to the 
damage of the plaintiff of two hundred thousand dol- 
lars. 


And therefore it brings suit. 


THE LaSatte County Carson Coat Company. 
By J. L. O’DonneE Lu, and 
Duncan, Dovtze & O’Conor, 


Its Attorneys. 
J. L. O’DonNELL, and 


Duncan, Dove & O’Conor, 
Attorneys for Plaintiff. 


Which said declaration is endorsed upon the back as 
follows: 


“14727 La Salle Co. Carbon Coal Co., vs. Sanitary 
District. Narr. J. L. O’Donnell, and Duncan, Doyle & 
O’Conor, Attys. for Complt.’’ 


(Also) ‘‘Finep Jan 141905 J. L. Witzeman Clerk La 
salle Cov Cirenite Court. 


Be it further remembered, that afterwards, and on, 
to-wit: the 15th day of March, A. D. 1905, there was filed 
in said court in said cause a certain demurrer to Narr in 
the words and figures following, to-wit: 


STATE OF ILLINOIS, 4 
LaSaLLe County. 


In THE CrrouIt CouRT. 
March Term, A. D. 1909. 


La Salle County Carbon Coal Co. 
vs. 
Sanitary District of Chicago. 


No. 14727. 
Case. 


And the defendant Sanitary District of Chicago, by 
James Todd, Frank J. Quinn, B. M. Chiperfield and Lin- 
coln & Stead, its attorneys, comes and defends, etc., when, 
ete., and says that the said declaration and each count 
thereof and the matters therein contained, in manner and 
form as the same are above set forth, are not sufficient 
in law for the plaintiff to maintain his aforesaid action 
and that the defendant is not bound by law to answer the 
same; and this it is ready to verify; wherefore for want 
of a sufficient declaration in this behalf, the defendant 
prays judgment and that the plaintiff may be barred 
from maintaining his aforesaid action, ete. 

(Signed) 
JAMES Topp, 
Frank J. QUINN, 
B. M. CHIPERFIELD, 
Lincotn & StTsap, 
Attorneys for Sanitary District 
of Chicago, Defendants. 


Which said remurrer to Narr is endorsed upon the 
back as follows: 


‘*No. 14727. La Salle County Carbon Coal Co. vs. 
Sanitary District of Chicago. Demurrer to Narr.’’ 


(Also) ‘‘Finep Mar 15, 1905. J. L. Witzeman, Clerk, 
La Salle Co. Cireuit Court.’’ 


16 


17 


18 


10 


Placita Cireuit Court LaSalle County, October Term, 
A. D. 1906. 


Hearing on demurrer before the Circuit Court of La- 
Salle County, October 17, A. D. 1900. 


October 20, A. D. 1905, demurrer sustained and eee 
granted to plaintiff to file an amendment to its declara- 
tion within 10 days. 


Amendment to declaration, as follows: 


Be IT FURTHER REMEMBERED, that afterwards, and on, 
to-wit: the 25th day of October, A. D. 1905, there was 
filed in said court in said cause a certain amendment to 
Narr in the words and figures following, to-wit: 


STATE oF ILLINOIS, af 
County or LASALLE. 


In toe Crrcutrt Court or Satp County. 
of the 
Octoper Term, A. D. 1905. 


La Salle County Carbon Coal Company 
vs. 
Sanitary District of Chicago. 


| Gen. No. 14727. 
Case. 


In pursuance of leave of court first had and obtained, 
the plaintiff amends his declaration as follows, to-wit: 


1. In place of the year of our Lord, ‘‘1902,’’ appear- 
ing on the 13th line from the top of the third page of 
the declaration aforesaid, substitute the year of our 
Lord ‘‘1904’’, 


2. Immediately before the word ‘‘flow’’ on the 13th 
line from the bottom of page 6 of said declaration, in- 
sert the words ‘‘and did naturally’’. 

3. After the word ‘‘flow’’ in the 12th line from the 
bottom of the 6th page of said declaration, insert the 
words ‘‘and it did naturally flow’’. 


20 


21 


22 


23 


24 


20 


26 


27 


28 


11 


4. Before the word ‘‘flow”’ in the 4th line from the 
bottom of said sixth page, insert the words ‘‘and did 
not naturally’’. 

5. Before the word ‘‘flow’”’ on the 12th line from the 
bottom of the seventh page of said declaration, insert the 
words ‘‘and did not naturally’’. 

(Signed) J. L. O’DonneE Lt, and 
Duncan, Doyitz & O’Conor, 
Attorneys for Plamtiff. 


Placita LaSalle County Circuit Court, March Term, 
1906. 

April 13, 1906, order continuing the case to the October 
Term, 1906, by agreement. 


Placita Cireuit Court of LaSalle County, October 
Term, 1906. 

October 8, 1906, stipulation between the plaintiff and 
the defendant continuing the case until the October 
Term, 1907, of the LaSalle County Circuit Court. 

Order continuing the cause. 


Placita Cireuit Court of LaSalle County, October 
Term, 1907. 


October 14, 1907, order continuing the cause by agree- 
ment. 


Placita Cireuit Court of LaSalle County, October 
Term, 1908. 


December 17, 1908, on the motion of B. M. Chiperfield 
and I. J. Quinn the appearance of all other attorneys 
for the defendant is hereby withdrawn. Appearance of 
fF’. J. Quinn and B. M. Chiperfield entered as attorneys 
for defendant. 


Leave granted to defendant to plead by January 1, 
A, D. 1909. 


12 


29 December 30, 1908, demurrer to amended declaration 
filed. 


aaah Placita Circuit Court of LaSalle County, June Term, 
ioe! 


32 July 3, 1909, demurrer to declaration withdrawn. 


Rule on the defendant to plead on or before August 
Ths BEL 
34-36 July 14, 1909, stipulation as to the order of trials of 
cases against the Sanitary District in the Cireuit Court 
of LaSalle County. 


ot September 4, 1909, plea of the general issue filed, as 
follows: 


State oF ILLINots, 
SS. 
County oF LASALLE. 


In tHE Circuit Court, 
June Term, A. D. 1909. 


La Salle County Carbon Coal Company General Nana 


Sanitary District of Chicago. eet 

And the defendant, Sanitary District of Chicago, by 
Frank J. Quinn and B. M. Chiperfield, its attorneys, 
comes and defends the wrong and injury, when, ete., and 
says that it is not guilty of the said supposed grievances 
above laid to its charge, or any or either of them, in 
manner and form as the plaintiff has above thereof com- 
plained against it; and of this the defendant puts itself 
upon the country, ete. 


(Signed) Frank J. Quinn, 
B. M. CHIPERFIELD, 
Attorneys for Defendant. 


38 


40) 


13 


September 4, 1909, plea of the statute of limitations as 
follows: 
Srate oF IuLinors, 
LaSaLuEt County. 
In THE Circuit Court, 
June Term, A. D. 1909. 


La Salle County Carbon Coal Company 
VS. 
Sanitary District of Chicago. 


General Num- 
ber 14727. 


And for a further plea in this behalf, the defendant 
says that the plaintiff ought not to have its aforesaid 
action against it, the defendant, because it says that the 
several supposed causes of action, in the said amended 
declaration mentioned did not, nor did any or either of 
them, accrue to the plaintiff at any time within five 
years, next before the commencement of this suit, in 
manner and form as the plaintiff has above complained 
against it, the defendant; and this the defendant is ready 
to verify. Wherefore, it prays judgment if the plaintiff 
ought to have its aforesaid action against it, ete. 

(Signed) Frank J. Quinn, 
B. M. CHIPERFIELD, 
Attorneys for the Defendant. 


September 4, 1909, plea of non-ownership filed as fol- 
lows: 


STATE oF ILLINOIS, “ 
LaSaLite County. 


In THE Circuit Court. 
June Term, A. D. 1909. 


LaSalle County Carbon Coal Company haat NEE 


is ber 14727. 


Sanitary District of Chicago. 
And for a further plea in this behalf, the defendant 


43 


44 


45 


14 


says that the plaintiff ought not to have its aforesaid 
action against it, the defendant, because, it says, that 
the channel, ditch, drain and outlet of the defendant de- 
scribed in the amended declaration herein was construct- 
ed, erected and built under and by virtue of authority 
of the laws of the State of Illinois, and in strict accord- 
ance therewith and pursuant to said authority, was 
opened on the 17th day of January, A. D. 1900, in aecord- 
ance with the Jaws of the State of Illinois, and that the 
same then was and from thence hitherto has been and 
still is a lawful, permanent structure and improvement, 
and that on said date the plaintiff was not the owner in 
fee simple of the real estate described in said amended 
declaration, or any part or portion thereof; and this the 
defendant is ready to verify; wherefore it prays judg- 
ment if the plaintiff ought to have its aforesaid action 
against it, ete. 
(Signed) Frank J. Quinn, 
B. M. CHIPEerFIELp, 
Attorneys for Defendant. 


Placita LaSalle County Cireuit Court, October Term, 
1909. 


October 11, 1909, petition for a change of venue from 
Judges Eldredge and Skinner. 


October 12, 1909, motion for change of venue over- 
ruled. Defendant excepts. 


Order setting case for trial November 8, 1909. 


46-55 Bill of exceptions filed in the Circuit Court of LaSalle 


County on the 18th day of October, A. D. 1909, in the 
above entitled cause, upon the motion for change of 
venue and in relation to proceedings therein. 


(This petition for change of venue is not abstracted 
herein for the reason that it does not pertain in any way 
to the appeal which is here prosecuted. 


15 
56 Placita LaSalle County Circuit Court, January Term, 
1910. 


57-58 Stipulation of the parties continuing cause to Janu- 
arent, Lol. 


59-60 January 17, 1910, stipulation continuing causes. 

61 Placita Cireuit Court of LaSalle County, January 
Term, 1912. 

62 February 16, 1912, rule upon the defendant to rejoin to 
replications within ten days. 


63-64 February 16, 1912, replication of plaintiff to certain 
pleas of the defendant as follows: | 


STATE oF ILLINoTs, 4 
LaSaLuLe Country. 


In THE Crrcuit Court oF THE JANUARY TERM, A. D. 1912. 


La Salle County Carbon Coal Company, | 
US. 14727. 
Sanitary District of Chicago. 
And the plaintiff as to the plea of the defendant first 
above pleaded, wherein it puts itself upon the country, 
doth the like. 


And the plaintiff as to the plea of the defendant by it 
secondly above pleaded says that it, the plaintiff, by rea- 
son of anything in that plea alleged, ought not to be 
barred from having its aforesaid action because it says 
that the said several causes of action and each and every 
of them did accrue to it within five years next before the 
commencement of this suit, in manner and form as it 
has above complained against the defendant; and this 
the plaintiff prays may be inquired of by the country, ete. 

And the plaintiff as to the plea of the defendant by it 
thirdly above pleaded says that it, the plaintiff, by rea- 
son of anything in that plea alleged, ought not to be 


69 


66 


16 
barred from having its aforesaid action because it says 
that it, the plaintiff, was, at the time and date in said 
plea alleged, the owner of the premises described in its 


declaration, and each and every part thereof, in manner 
and form as in its declaration alleged. 


And this the plaintiff prays may be inquired of by 
the country, ete. 
(Signed.) J. L. O’DoNNELL, and 
Dunoan, Dovte & O’Connor, 
Attorneys for Plantiff. 


February 26, 1912, extension of rule to plead to 
amended declaration of ten days. 


March 1, 1912, rejoinder to plaintiff’s replication as 
follows: 


State oF ILurnots, 
SS. 
County oF La SALLE. 


In THE Circuit Court, Marcu TERM, A. D. 1912. 


La Salle County Carbon Coal Company, 
US. 
Sanitary District of Chicago. 


And now comes the defendant, and for a rejoinder to 
the replication of the plaintiff to the plea of the defend- 
ant by it secondly above pleaded, wherein it puts itself 
upon the country, doth the like. 


And now comes the defendant, and for a rejoinder to 
the replication of the plaintiff to the plea of the defend- 
ant by it thirdly above pleaded, wherein the plaintiff puts 
itself upon the country, doth the like. 

(Signed.) B. M. CuHrIprrFie.p, 
Frank J. QUINN, 
Attorneys for Defendant, 


17 
68-69 March 1, 1912, defendant’s fourth plea as follows: 
State oF ILLINOIS, 
La SALLE County. : 
In THE Circuit Court, Marcu Term, A. D. 1912. 
La Salle County Carbon Coal Company, Goneral 


Us. ai 
Sanitary District of Chicago. No. 14,727. 


And the said defendant, the Sanitary District of Chr- 
eago, by B. M. Chiperfield and Frank J. Quinn, its at- 
torneys, for a further plea in this behalf, says that the 
plaintiff ought not to have and maintain its aforesaid 
action against it, the said defendant, because it says that 
it has not done any act, nor is it guilty of any grievance 
as alleged in the plaintiff’s declaration, or any count 
thereof, that has damaged or injured the said lands of the 
said plaintiff, as described in the plaintiff’s declaration, 
for any use to which, under the law of the State of IIli- 
nois and by the articles of incorporation of the said plain- 
tiff, or the powers and authority with which it, the plain- 
tiff, the La Salle County Carbon Coal Company, is by 
law invested, or has the lawful power or authority to 
own, hold, enjoy or use the said lands, namely, for the 
purpose of mining, coking and selling coal, or any use 
necessarily incident thereto, which the defendant avers 
is the sole purpose for which the plaintiff has the right 
to own, hold, use, employ or enjoy said lands, so des- 
eribed in the said declaration; and this the defendant is 
ready to verify, wherefore it prays judgment if the 
plaintiff ought to have its aforesaid action against it, ete. 


(Signed.) B. M. CHiprrFie.p, 
FRANK J. QUINN, 


Attorneys for Defendant. 
70 March 8, 1912, demurrer by the plaintiff to the fourth 


plea of the defendant. 


12 


~I 
wo 


74 


79 


76 


77 


78 


18 


Placita, Circuit Court of La Salle County, March Term, 
1912. 

March 13, 1912, order of the court sustaining demurrer 
to the fourth plea of the defendant. The defendant ex- 
cepts and abides it forth pleading. 

March 21, 1912, the court grants leave to plaintiff to 
amend declaration. Rule entered upon the defendant to 
plead to declaration as amended within ten days. 


Amendment to declaration, as follows: 


STATE OF ILLINOIS, an 
County or La Saute. | ~~ 


In THE Circuit Court oF Samp County, Marcu Tro, A. 
D192: 


Gen. No. 


La Salle County Carbon Coal Company, | Case. 
14,727. 


aes: 
Sanitary District of Chicago. 


In pursuance of leave of court first had and obtained, 
the plaintiff amends its declaration as follows: 


That the 10th line from the bottom of fifth page of 
said declaration which now reads as follows: ‘‘the south- 
west quarter of the southwest quarter north of the,’’ be 
made to read in lieu thereof as follows: ‘‘the southeast 
quarter of the southwest quarter north of the.’’ 


(Signed.) J. L. O’DonNELL, and 
Duncan, Doyte & O’Connor, 
Attorneys for Plaintiff. 


March 28, 1912, motion by the defendant for a con- 
tinuance until the next term of court. 


April 2, 1912, the court overruled motion for a con- 
tinuance to the next term of court. 


April 10, 1912, order setting case for trial April 15, 
1912, at 1:30 P, M. 


168, 


19 


April 15, 1912, motion for a continuance. Motion al- 
lowed. 


80-81 May 18, 1912, defendant files plea as follows: 


Stave oF ILLINoIs, ) 
SS. 
La Satie County. § 


Iy tHe Circurr Court, Marcu Trrm, A. D. 1912. 
La Salle County Carbon Coal Company, “Abe 


US. | 
Sanitary District of Chicago. 14,727, 


And the said defendant, the Sanitary District of Chi- 
eago, by B. M. Chiperfield and Frank J. Quinn, its at- 
torneys, for a further plea in this behalf, says that the 
plaintiff ought not to have and maintain its aforesaid 
action against it, the said defendant, because it says that 
it had not done any act, nor is it guilty of any grievance 
as alleged in the plaintiff’s amended declaration, or any 
count thereof, that has damaged or injured the said 
lands of the said plaintiff, as described in the plaintiff’s 
amended declaration, for any use to which, under the 
laws of the State of Ilhnois, and by the articles of in- 
corporation of the said plaintiff, or the powers and au- 
thority with which it, the plaintiff, the La Salle County 
Carbon Coal Company, is by law invested, or has the 
lawful power or authority to own, hold, enjoy, or use 
the said lands, namely, for the purpose of mining, coking 
and selling coal, or any use necessarily incident thereto, 
which the defendant avers is the sole purpose for which 
the plaintiff has the right to own, hold, use, employ or 
enjoy said lands, so deseribed in the said amended dec- 
laration. And this the defendant is ready to verify, 
wherefore it prays judgment if the plaintiff ought to have 
its aforesaid action against it, ete. 


(Signed.) B. M. Cuiprrrrexp, 
Frank J. Quinn, 
Attorneys for Defendant. 


86 


87 


88 


89 


20 


Placita, La Salle County Cireuit Court, June Term, 
1912. 


Order setting cause for trial November 6, 1912. 


Placita, La Salle County Circuit Court, October Term, 
19:12; 

November 7, 1912, the court sustains demurrer of the 
plaintiff to the defendant’s plea of the statute of limita- 
tions to the declaration as amended. The defendant 
abides its special plea of the statute of limitations to 
the declaration as amended. 


Defendant moves the court for leave to file a plea of 
nul tiel corporation. 


Plaintiff objects; objection sustained. 


Defendant is granted leave to refile its pleas hereto- 
fore, filed of the general issue, the statute of limitations 
and non-ownership, and it is ordered by the court that 
the same stand as pleas to the declaration as amended. 


Plaintiff is granted leave to re-file its demurrer to the 
defendant’s fourth plea. Demurrer sustained. Defend- 
ant abides by its said fourth plea. 


Leave granted to the plaintiff to re-file its replications 
heretofore filed to the defendant’s first, second and third 
pleas, and to the defendant to re-file its rejoinders here- 
tofore filed herein to the replications of the plaintiff to 
the defendant,’s first, second and third pleas. 


November 11, 1912, case called for trial. Jury selected. 
Adjourned until the following day. 

November 12, 1912, hearing continued, adjournment 
until the following day. 

November 13, 1912, hearing continues, adjourns until 
the following day. 


November 14, 1912, hearing continues, adjourns until 
the following day. 


a) 


98 


104 


105 


106 


21 


November 15, 1912, hearing continues, adjournment 
until Monday morning next. 

November 18, 1912, hearing continues, adjourned until 
the following day. 

November 19, 1912, hearing continues, adjourned until 
the following day. 

November 20, 1912, hearing continues, adjourned until 
the following day. 

November 21, 1912, hearing continues, adjourned until 
the following day. 

November 22, 1912, hearing continues, adjourned until 
Monday morning next. 

November 25, 1912, hearing continues, adjourned until 


| the following day. 


November 26, 1912, hearing continues, adjourned until 
the following day. 

November 27, 1912, hearing continues, adjournment 
until Monday morning next. 

December 2, 1912, hearing continues, adjourned until 
the following day. 

December 3, 1912, hearing continues, adjourned until 
the following day. 

December 4, 1912, hearing continues, adjourned until 
following day. | 

December 5, 1912, evidence concluded. Arguments of 
counsel presented to the jury. Further hearing post- 
poned until following morning. 

December 6, 1912, argument continued. Jury instruct- 
ed. Retired in charge of an officer. 


December 7, 1912, verdict of jury returned into open 
court as follows: ‘‘We, the jury, find the defendant 
culty and assess the plaintiff’s damages at the sum of 
$35,000. ”’ 


December 11, 1912, the defendant, by its attorneys, 
moves the court to set aside the verdict and for a new 
trial herein. 


108 


109 


110 


22 


(Note. Motion for new trial set forth in bill of ex- 
ceptions. ) 

January 4, 1913, defendant moves the court for leave 
to withdraw its motion to set aside verdict and for new 
trial heretofore entered herein, and defendant’s points 
in support thereof heretofore filed herein. Motion 
granted by the court. 


Defendant moves the court that judgment be rendered 
herein for the defendant non obstante veredicto. 
Motion overruled; defendant excepts to said ruling. 


Defendant re-files and renews its motion to set aside 
the verdict and for a new trial. 
Motion overruled by the court; defendant excepts to 
such ruling. 
Motion by the defendant in arrest of judgment. 
Motion overruled; defendant excepts to such ruling. 


Plaintiff, by its attorneys, moves the court for an 
order fixing attorneys’ fees and taxing same as costs. 


Defendant moves the court for a rule on plaintiff to 
file a bill of particulars on their claim for attorney’s fees. 
Motion sustained and rule entered to file a bill of par- 
ticulars on its claim for attorneys’ fees by Tuesday 
morning next, and the hearing on said motion of plain- 
tiff for an order fixing attorneys’ fees and taxing the 
same as costs is postponed until Saturday morning next 
at 10:30 o’clock a. M. 


January 11, 1913, defendant moves the court for a rule 
on plaintiff to file a more specific bill of particulars on 
its claim for attorneys’ fees, and the defendant, by its 
attorneys, protests against proceeding with the hearing. 
on such claim until said bill of particulars is filed herein, 
and moves the court for a continuance of said hearing, 

Motion overruled; defendant excepts to such ruling, 


23 


Defendant moves the court for an entry of judgment 
herein. 
Plaintiff objects; objection sustained; defendant ex- 
cepts. 


Thereupon the defendant, by its attorneys, enters a 
protest against being required to appear upon the ques- 
tion of taxation of any costs herein until judgment has 
been entered herein against one of the parties to the suit. 

Motion overruled; defendant excepts. 


111 +#Plaintiff’s motion for an order fixing its attorneys’ 
fees and taxing same as costs comes on to be heard. The 
court having heard all of the evidence submitted, the 
plaintiff, by its attorney, moves the court for a judgment 
on the verdict. 

To which the defendant, by its attorney, objects; ob- 
jection overruled; defendant excepts. 


The court renders judgment in favor of the plaintiff 
for $35,000 and its costs and charges, by it, in its behalf, 
expended and that it has execution therefor. 

The defendant excepts. 


The court hears arguments and suggestions of counsel 
on plaintiff’s motion to assess plaintiff’s attorneys’ fees 
and tax the same as costs. The court assesses said 
plaintiff’s attorneys’ fees at $5,000. 

And it is ordered by the court that $5,000 attorneys’ 
fees be taxed herein as a part of the costs. 

lixception by the defendant. 


Defendant prays an appeal to the Supreme Court of 
the State of [llinois. Appeal granted. Defendant al- 
lowed sixty days in which to prepare and tender its bill 
of exceptions. ° 


Defendant, by its attorneys, prays an appeal to the 
112 Appellate Court of the Second District of the State of 
Illinois on the order of the court allowing attorneys’ fees 


113 


114 
115 
116 


117 


24. 


and taxing the same as costs. Appeal granted. Defend- 
ant allowed thirty days in which to prepare and tender 
its bill of exceptions. 

Bill of exceptions in the above entitled cause filed .... 
day“of at: aaert erie ue: , A. D. 19138, as follows: 


November 7, 1912, cause comes on for trial. 
Jury excused until Monday morning. 


Defendant asks leave to file plea of nul tiel corpora- 
tion as follows: 


Strath oF ILLINoIs, 
tee . SS. 
County oF La Satie. 


In tHE La Satie County Circuit Court, NovEMBER 
Term, A. D. 1912. 


La Salle County Carbon Coal Company, 
ls: 
Sanitary District of Chicago. 


And for a further plea in its behalf the defendant says 
that the plaintiff ought not to have its aforesaid action 
against it, the defendant, because it says there is not, nor 
was, at the time of the commencement of this suit any 
such corporation as the La Salle County Carbon Coal 
Company, as by the said declaration is above supposed; 
and of this the defendant put itself upon the country, ete. 


(Signed.) CHIPERFIELD & CHIPERFIELD, 
Attorneys for the Sanitary 
District of Chicago. 


Objection by the plaintiff to the filing of such plea. 


118-130 Argument of counsel upon the right to file the nul 


tiel corporation. 


130-131 Decision on motion by the court denying motion to 


file plea of nul trel corporation. 
Exception by the defendant. 


20 


133-140 Order by the court and argument of counsel with 


reference to the settling of pleadings as heretofore set 
forth in the record. 


141-350 November 11, 1912, examination of jury by counsel 


for the respective parties, and replies of jurors thereto. 


(This portion of the record is not abstracted for the 
reason that no questions are raised in connection there- 
with in any way that affects this appeal and no error is 
assigned in connection with the examination and selection 
of the jury herein.) ; 


351-353 Admonition by the court to the jury. 


354-363 Argument of counsel with reference to requiring 


364 


368 


373 


the plaintiff to produce certain books of account. 


Commencement of opening statement for plaintiff by 
Mr. O’Connor. 


Extract from opening statement: 


‘‘There is no question in this case about the turning in 
of the water. This defendant will admit that. They will 
admit they have turned the water into this valley but 
they enter a denial in toto that practically says they have 
not damaged this land or any other land.’’ 


Mr. CuiperFieLp: We object to the statement concern- 
ing any other land. 


The Court: Well, I overrule the objection. 
Kixception by the defendant. 


Iixtract from opening statement of Mr. O’Conor: 


“They will admit they have raised it some; how much 
I don’t know. 


Mr. CHIPERFIELD: I object to the statement. We make 
no such admission. 


Mr. O’Conor: I am wrong about it. They won’t ad- 
mit anything. 


379 


ol 


26 


Mr..Cuiperrietp: I object to the statement of counsel 
and ask for a ruling. | 


The Court: I think I will overrule the objection. 
To which ruling of the court the defendant by its 
counsel then and there duly excepted.’’ 


Opening statement for the defendant by Mr. Chiper- 
field. 


Extract from opening statement by Mr. Chiperfield: 


From the statement which was made here you would 
get the idea that the plaintiff, the La Salle County Car- 
bon Coal Company was a farmer, but I want to assure 
you that the evidence in this case will show you no such 
condition of affairs. The La Salle County Carbon Coal 
Company is a coal mining corporation, capitalized at 
one million dollars; a coal mining corporation whose sole 
business is the business of digging, coking and selling 
coal; all the rights it has under its charter; not a farmer 
going around in overalls and top boots. 


Mr. O’Conor: We object to that statement, your 
Honor. That has already been passed upon by the court 
and is a matter of law. 

The Court: I think I will sustain the objection. 

Defendant excepts. 

Mr. CHIPERFIELD: 'l’o what part of my statement, your 
Honor? 

Mr. O’Conor: I think it ought to be sustained to all 
of that, your Honor, that makes a reference to the of- 
ficers of the company. 

The Court: No, I will let that stand. 

Mr. Curiperrietp: I want to conform to the ruling of 
the court and I would like to know what part of my state- 
ment the objection was sustained to. 


The Court: JI think your statement as to who the 


279 


27 


officers were was all right, because I can see that might 
have a bearing on the case. I don’t know. 


Mr. CurperFieELD: Surely it is all right. 


The Court: The fact it is a corporation that has no 
business except coal mining and is not a farmer,—I don’t 
think that is proper. 


Mr. CureerrreLD: Isn’t it proper to say it is a cor- 
poration when it is so stated in the declaration? 


The Court: I sustained the objection. 


Mr. Curperrietp: I want to conform to your Honor’s 
ruling and I ask in all earnestness why it is not proper 
for me to state— 


The Court: The court has passed upon that question 
and decided it is a matter of immateriality whether it is 
a corporation for coal mining purposes or not. As I un- 
derstand, this corporation has a right to hold this land 
as a farmer, and you have no right to question that in 
your case. 


Mr. CurperFiIELp: No, that is not the purpose of my 
statement, if your Honor please. My statement is as to 
the form of organization as to this company, that it is 
a corporation and it is embodied in this declaration, and 
why cannot this jury be told it is a corporation? I want 
to preserve this record and I want to do it in all fair- 
ness, but does your Honor hold for a minute it is in- 
competent to tell this jury it is a corporation, when they 
sue as a corporation? 


The Court: I have ruled on it and another court has 
ruled on it and sustained it. 


Mr. Cutprerrietp: I do not question your Honor’s 
ruling and I do not care for the ruling of any other court, 
but I do want to state to this Jury, your Honor, that this 
is a corporation. 


ool 


Se) 


bo 


28 
The Court: I will let you state that. I don’t object to 
that. 
Extract from opening statement of Mr. Chiperfield: 


‘Tt will also be shown, gentlemen, that some of this 
land has been used for agricultural purposes at different 
times, and the proof will be that some of it, at different 
times, has rented for a dollar an acre. 


Mr. O’Conor: ‘To which we object, your Honor. 
Mr. CHIPERFIELD: We expect to prove it. 


Mr. O’Conor: You can’t prove it. 





Mr. CuiperFiELD: I object to the conduct of counsel 
as highly improper, interrupting my statement, and 
making a statement which I make to the jury is not true 
and cannot be proven. 


Mr. O’Conor: Just a minute. I make an objection 
and he turns to me and says, ‘We will prove it’ and I 
say he can’t. 


Mr. CuHIPERFIELD: I object to the statement of counsel 
as improper and the conduct of counsel as improper. 


The Court: I will sustain both of your objections. 


Mr. O’Conor: That is even. 
To which ruling of the court the defendant by its 
counsel then and there duly excepted. 


Mr. Cuiprerrietp: I object to the last statement of 
counsel as improper. 


The Court: I think you have a right to address the 
jury and I think he has a right to make an objection. I 
would have overruled his objection if you had given me 
time. 


Mr. O’Conor: I think, your Honor, when counsel is 


making a statement to the jury and the statement is 
made that his statement is true, and counsel merely takes 


29 


his seat, he treats it with more moderation than is usu- 
383 ally given in a court of justice. If you had taken your 
seat and given me a chance to say something— 


Mr. Cureerrietp: I thought this was my statement, 
my address to the jury. 


Mr. O’Conor: It is, Mr. Chiperfield. 
Mr. Curperrirtp: Until I can be treated properly I 
will wait. 
Mr, O’Conor: I simply made an objection to the court. | 
The Court: I have ruled on it. 
Mr. O’Conor: Very good. 
To which ruling of the court the defendant by its 
counsel then and there duly excepted. 


Mr. CurrPerFrietp: I want to object to the last conduct 
of counsel as improper.’’ 


392 Extract from the statement of Mr. Chiperfield. 


‘¢And we will narrate and prove to you by witnesses 
who will come here for that purpose that a vast number 
of crops that can be successfully and profitably raised in 
the State of Illinois, are not raised on this land simply 
because they will not put it to that use until this law 
suit 1s over. 


Mr. O’Conor: I object to the fairness of that state- 
ment. 


The Court: Sustain the objection. 
The defendant excepts.’’ 


399 Extract from statement of Mr. Chiperfield: 


‘*And when these gentlemen pretend to say that the 
Illinois River in times of low water is raised from four to 
six feet in times of high water that it has raised from 
four to six feet, we say from our knowledge of this sub- 
ject that it is an absurdity, a silly statement; it is not 


407 


408 


409 


410 


30 


correct. And we expect the evidence in the case will 
demonstrate conclusively and plainly that it 1s not cor- 
rect, that it is made simply for the purpose of enhancing 
the damages in this case. It is not correct. I don’t care 
who says it is correct, the evidence in this case will 
demonstrate it 1s not. 


Mr. O’Conor: Your Honor, we object to this argu- 
ment. 


Mr. Curperrietp: That is my statement. 


The Court: I will sustain the objection to the last. 
Defendant excepts. 


Mr. O’Conor: State facts, please. 


Howarp S. Hazen, a witness for the plaintiff being sworn, 
testifies as follows: 


Direct Examination by Mr. Butters. 


My name is Howard 8S. Hazen. I live in La Salle. I 
have lived there thirty-six years. I am in the coal min- 
ing business for the La Salle County Carbon Coal Com- 
pany. Iam general manager. Have been with that com- 
pany since 1884. J was bookkeeper and pay roll clerk 
from 1884 to 1890. The works of the La Salle County 
Carbon Coal Company are located at La Salle and Peru. 
The lands are located in 15 in La Salle and 16 in Peru 
and 4 1n the Town of Eden. I first saw Exhibit 4 in the 
manager’s office of the La Salle County Carbon Coal 
Company in 1890, about fourteen years subsequent to the 
date of the instrument; six years subsequent to the date 
of recording; six years to the date of the deed. I sup- 
pose Exhibit 1 has been kept in the manager’s office in 
Chicago. I first found it there. 


Supposition stricken out by the court. 


411 


414 


415 


3] 


I found it there in November, 1911. I found that deed 
in the Illinois Trust & Savings Deposit box in Chicago. 
This box was in the custody of F. O. Wyatt, general man- 
ager of the La Salle County Carbon Coal Company. 


Plaintiff offers in evidence Plaintiff’s Exhibit 1 to- 
gether with certificates of recording thereto attached and 
the certificate of acknowledgement. 


Mr. CuiperFieLD: * * * J would like to have the 
opportunity of asking the witness a question out of the. 
presence of the jury. 


The jury retires. The testimony continued out of the 
presence of the jury. 


Mr. Curreerrietp: @. The La Salle County Carbon 
Coal Company which is named as grantee in this deed 
is the plaintiff in this case? 


POY es Sir: 


There has never been more than one La Salle County 
Carbon Coal Company. I never knew of but one charter 
dated 1883 or 1884. I don’t know of any other La Salle 
County Carbon Coal Company except the La Salle County 
Carbon Coal Company that was organized under this 
eharter of 1883. It is still operating under that charter. 
It is the plaintiff in this case. J have not the charter 
with me. 


Mr. CureerFieLtp: You were asked, gentlemen, to pro- 
due that charter. Have you the charter available? 


Mr. O’Conor: We have it. 
(Charter handed to the witness.) 


The duration of the charter shall be fifty years. The 
date of the charter is the 8th day of November, 1883. 
There was a reorganization of this company in 1893, 
where the capital stock was increased from $70,000 to 
$75,000. It was reorganized, yes sir. There was another 


416 


417 


32 


reorganization where the capital stock was increased to 
$1,000,000. The same charter was continued. The ob- 
ject for which this charter was taken out was for the 
selling and mining of coal and coke. It is so stated. 


Q. It is so limited by your charter, is it not? A. So 
stated. I don’t know whether it is limited or not.’’ 


I don’t know whether there is a limitation. 
Objection by the plaintiff that the charter is the best 
evidence; objection sustained; defendant excepts. 


Mr. CuHIperFIeLD: Now, then, in connection with the 
foundation which is being offered, and for the purpose 
of having it solely before the court, I want to have the 
charter incorporated in this examination. 

Objection by plaintiff. 

The Court: I will let it go in in the absence of the 
jury. 

Mr. CurperFIELpD: Simply for the foundation. 

It is to lay the foundation for the admission of this 
deed; it is for the record and not for the jury. 

The charter of the La Salle County Carbon Coal Com- 


pany was received in evidence by the court, marked Ex- 
hibit 2 and is in words and figures following, to-wit: 


EXHIBIT 2. 


“STATE OF ILLINOIS, 
DEPARTMENT OF STATE. 

Henry D. Dement. Secretary of State. 
T'o ALL TO WHOM THESE PRESENTS SHALL COME, GREETING: 
Wuepreas, a statement, duly signed and acknowledged, 

has been filed in the office of the Secretary of State, on 

the 24th day of August, A. D. 1883, for the organization 
of the La Sante County Carson Coat Company under and 
in accordance with the provisions of ‘An Acr Concrrn- 


3a 


ING CorporaTIONS,’ approved April 18, 1872, and in force 
July 1, 1872, and all acts amendatory thereof, a copy of 
which statement is hereto attached; 

AND WHEREAS, a license has been issued to EXpmMonp D. 
Taytor, Isaac W. Rocers and Winutam ‘W. Taytor, as 
commissioners to open books for subscription to the 
eapital stock of the said company ; 

AND WHEREAS, the said commissioners have, on the 8th 

418 day of November, A. D. 1883, filed in the office of the 
Secretary of State a report of their proceedings under 
said license, a copy of which report is hereto attached; 

Now, THEREFORE, I, Henry D. Dement, Secretary of 
State of the State of [llinois, by virtue of the powers vest- 
ed in me by law, do hereby certify that the said La SALLE 
County Carpon CoaL Company, is a legally organized 
corporation under the laws of this state. 


IN TESTIMONY WHEREOF, I, here- 
to set my hand and cause to be 
affixed the great seal of State. 
Done at the City of Spring- 
( Seal of the State ) field, this eighth day of Novem- 
(of Illinois, August) ber, in the year of our Lord, 
( 26, 1818. ) one thousand eight hundred 
eighty-three and of the inde- 
pendence of the United States 

the one hundred and eight. 

Henry D. Dement, 

Secretary of State. 


State or [LLINOIs, : 
La Satie County. 
PMTIOU Meal oy ee; «2 
To Henry D. Dement, Secretary of State: 
We, the undersigned Epmonp D. Taynor, Isaac W. 
Rocers and Wriu1aAm W. Taytor, propose to form a cor- 


poration under an act of the general assembly of the 
419 State of Illinois, entitled ‘An act concerning corpora- 


420 


34 


tions.’ Approved April 18, 1872, and all acts amenda- 
tory thereof; and, for the purpose of such organization, 
we hereby state as follows, to-wit: 


1. The name of said corporation is La Saute County 
CaRBON CoaL COMPANY. 


2. The object for which it is formed is mining, coking 
and selling coal. 


3. The capital stock shall be Fives Hunprep T'Housanp 
DoLuars. 


4. The amount of each share is ONE HunpDRED DoLuaRs. 
5. The number of’shares Ftvzn THOUSAND. 


6. The location of the principal office is in La Salle, in 
the County of La Salle, State of Illinois. 


7. The duration of the corporation shall be fifty (50) 
years. 
EK. D. Taytor, 
I. W. Rogers, 
Wituiam W. Tayuor. 


STATE OF ILLINoTs, Hf 
County or La SALe. 


I, Cuarvtes L. Braprorp, a notary public, in and for the 
county and state aforesaid, do hereby certify that on the 
23d day of August, A. D. 1883, personally appeared be- 
fore me 

Kpmunp ID, Taytor, 

Isaac W. Rocers, and 

Wituiam W. Taytor, 
to me personally known to be the same persons who ex- 
ecuted the foregoing statement, and severally acknowl- 
edged that they executed the same for the purposes 
therein set. forth. 


35 


In witness wHerxor, I have hereunto set my hand and 
seal the day and year above written. 
CuHarues L. BraDForp, 
[ SEAL. ] Notary Public. 


Full paid $500,000. 


To Honorable Henry D. Dement, Secretary of State of 
the State of Iilinois: 


The commissioners duly authorized to open Books of 
Subscription to the Capital Stock of the La Salle County 
Carbon Coal Company pursuant to license heretofore 
issued bearing date the 24th day of August, A. D. 1888, 
do hereby report that they opened Books of Subscription 
to the Capital Stock of said company, and that the said 
stock was fully subscribed; that the following is a true 
copy of such subscription, viz: We, the undersigned, 
hereby severally subscribe for the number of shares set 
opposite our respective names to the capital stock of the 
La Salle County Carbon Coal Company, and we severally 
agree to pay the said company, for each share, the sum of 
One Hundred Dollars. 


Names. Shares. Amount. 
PRGA YY BIVOOET Sct. f-sn0 4996 $499,600 
Heme el AVIOT. oem See. 1 100 
eee Doolittle 4 ues * 1 100 
JE UTNE SRG eh a ek ieee 1 100 
James Goggin ....... aaah dice b 100 


and they do further report, the organization of said com- 
pany took place as follows, viz: 


At a meeting of the subscribers to the capital stock of 
the La Salle County Carbon Coal Company, held at room 
33 Howland Block, Chicago, November 7, 1883, the fol- 
lowing named subscribers were present, viz: 

Isaac W. Rogers, subscriber for 4,996 shares. 
Hdmund D, Taylor, subscriber for 1 share. 


36 


James F. Joy, subscriber for one share. 

James Goggin, subscriber for one share. 

James R. Doolittle, subscriber for one share. 
Whereupon James F. Joy was unanimously chosen 
chairman or president of said meeting, and James R. 
Doolittle was unanimously chosen secretary. 


Thereupon it was unanimously resolved that the above 
named stockholders be elected directors of said company 
for the ensuing year. It appearing that all of the sub- 
seribers to the capital stock of said company were pres- 
ent, and unanimously voted for the election of such di- 
rectors, it was deemed unnecessary, for that reason, that 


any notice of such election should be published. 


On motion the meeting of stock holders was adjourned 
sina die. 

Immediately after the adjournment of the meeting of 
the stockholders at the same place and on the same day, 
there was held a meeting, being the first meeting of the 
directors of the La Salle County Carbon Coal Company. 

At such meeting, the following named persons, being 
all of the directors of said company, to-wit: James F. 
Joy, Edmund D. Taylor, James Goggins, Isaac 'W. Rog- 
ers, and James R. Doolittle were present. 

Whereupon said meeting being called to order, on mo- 
tion it was resolved that James F. Joy be chosen presi- 
dent of said meeting. 

On motion, James R. Doolittle was appointed secre- 
tary of this meeting. 

On motion, it was resolved that James F. Joy, be 
elected president of said company. 

On motion, it was resolved that Jaspar Johnson be 
elected secretary and treasurer of said company. 

K. D. Taynor, 
Isaac W. Rocers, 
Wituiam W. Taytor. 


423 


424 


37 


State oF ILLINots, 
SS. 
County or Cook. 


Kdmund D. Taylor, and Isaae W. Rogers, being duly 
sworn, say that they have read the above report sub- 
scribed to by them as commissioners, and that the same 


is in all respects true. 
HK. D. Taytor, 


Isaac W. Roaers. 


Subseribed and sworn to béfore me this 7th day of 
November, A. D. 1883. 
Witness my hand and official seal. 
Henry MocKey, 
[ SEAL. | : Notary Public. 
Cook County, Illinois. 
(On the back of the foregoing instrument appears the 
following endorsement) : 


‘‘Certificate of incorporation 
of the 
La Salle County Carbon Coal Company. 


Nov. 8, ’83. 


STATE oF ILLINOIs, 


Ta Satie County. Site N Ov oli dae. 


This instrument was filed for record this 10th day of 
November, A. D. 1883, at 10 o’clock a. m. and is duly rec- 
orded in book 241 of records, page 122. 

STEPHEN ARNOLD, 
Recorder.’’ 

The Court: Well, you may call the jury back. You 

are through. 


Mr. CureerrieLp: Q. Well, let us see. You say, Mr. 
Hazen, you are the general manager of this concern? 


A Jey C8; SIT; 


426 


427 


428 


38 


In a general way my duties are looking after the min- 
ing and selling of the coal and I have charge of the other 
properties. I have charge of the company’s records. I 
am secretary of the company. 


The Courr: Let the record show that the jury is re- 
called. 


(Whereupon the jury resumed its place and the fol- 
lowing proceedings were had in its presence.) 


Mr. Burrers: Will you mark these documents Hx- 
hibits 3, 4, 5, 6, 7, 8 and 9? 

Q. Now, Mr. Hazen, you may look at the papers I now 
show you marked Exhibits 3, 4, 5, 6, 7, 8 and 9 and state 
where you first saw those papers? 


A. I saw those papers in 1884 in March, in the office of 
the Illinois Valley Coal Company, at Oglesbee, Jonesville 
near La Salle, in the manager’s office, secretary’s office. 


(). Now, then, since you saw those papers, and the one 
ineluded in the previous question, marked Exhibit 1, 
what was done subsequent to that time with the lands 
described in these several exhibits 1 to 9, I think, in- 
elusive? A. Three to nine. One is the original. 

Objection by the defendant, as being incompetent, 
irrelevant and immaterial, and that no proper 
foundation has been laid for the admission of the 
testimony at this time; that it does not tend to 
prove any of the issues of this case; that it tends 
to create a variance between the allegation of the 
plaintiff’s declaration, which alleges ownership, 
and the testimony which is now being offered. 


Objection overruled; defendant excepts. 


Objection by the defendant that the lands concern- 
ing which the question is asked do not appear to 
be the same lands embraced in the declaration. 


429 


430 


39 


The Courr: I think I will let him answer the question. 
Exception by the defendant. 


A. Such part as was favorable for agricultural pur- 
poses was operated that way. 
Motion by the defendant to strike out the answer. 
Motion overruled; defendant excepts. 


Mr. Burrers: @. In whose possession were the lands 
mentioned in the several deeds to which your attention 
has been called and numbered Exhibits 1 and 2 to 9, 1n- 
elusive? 

Objection by the defendant. 


The Court: I think I will let him answer. 
Exception by the defendant. 


Mr. CurperrieLD: Pardon me, I want to state my ob- 
jection. I object to it for the reason it does not embrace 
the land described in the plaintiff’s declaration; that it 
embraces a large quantity of land other than the land 
deseribed in the plaintiff’s declaration, thereby tending 
to raise a collateral issue, not one which is involved in 
this suit; and for the further reason that it is calling for 
the conclusion of the witness. * * * The court ought 
to be advised, if he is not, that there are many hundred 
acres of land which are not embraced in this suit at all 
described in those deeds. 


Mr. O’Conor: Well, that is very true. 


The Court: I think I will let him answer the question. 
Exception by the defendant. 


Mr. CuiperFietp: There are in these deeds a large 
number of other tracts of land described other than those 
that are involved in this suit. If they are offered and 
received in evidence at all they are offered and received 
in evidence because they are material to sustain the issue 
in this case. It seems to me apparent at a glance that 


45 
45 


:; 
5) 


454 


45 


5 


40) 


those portions of land which are not involved in this 
suit— 

The Courr: Let me ask you a question. 

Mr. CHIPERFIELD: Certainly. 


The Court: Are there some deeds there that do not 
include any portion of the land in controversy? 
Argument upon objection. 


The Court: I think I will let him answer. 
Defendant excepts. 


A. In possession of the Illinois Valley Coal Com- 
pany. 
Answer stricken out by the court. 


In March, 1884, the Illinois Valley Coal Company sold 
their property to the owners of the La Salle County Car- 
bon Coal Company, who operated the Illinois Valley Coal 
property until 1892, under separate management. The 
two properties were worked together under the same 
management and consolidated in 1892 under the name of 
the La Salle County Carbon Coal Company. That is the 
history of the operation, and when I saw those in 1884, 
they were in the hands of the Illinois Valley Coal Com- 
pany. 

Mr. Burrers: Q. Now, then, look at exhibits num- 
bered 1 and numbered 3, and state in whose possession 
the lands therein described have been since the date of 
those deeds and the delivery of them. 

Objection by the defendant. 


The Court: I think I will let him answer. 
Exeeption by the defendant. 


A. Number 1 has been in the possession of the La Salle 
County Carbon Coal Company since November, 1883, and 
number 3 has been in the possession of the La Salle 
County Carbon Coal Company since October, 1892. 


436 


437 


4] 


Mr. Burrers: Q. What if anything has been done by 
the way of acts of possession of the lands, the surface of 
these lands? 


Mr. CurperFrietp: I object to that as incompetent, ir- 
relevant and immaterial and not tending to prove any of 
the issues in the case; and no proper foundation had been 
laid. 


The Court: I think I will let him answer. 
Defendant excepts. 


A. It was in the possession of the La Salle County 
Carbon Coal Company. 


Answer stricken out by the court. Question re-read. 
Defendant renews objections. 
Objection overruled; defendant excepts. 


A. They have been under the management of the La 
Salle County Carbon Coal Company. 


Mr. Butters: That is all. Now, we want to offer in 
evidence the deeds numbers 1, 3, 4, 5, 6, 7, 8 and 9 and 
each of them, jointly and separately; also the acknowl- 
edgements, certificate of acknowledgement and recording 
thereto attached. 

Mr. CuHIPERFIELD: I want to ask each and all of the 
questions that have been previously asked of this witness 
and to offer in connection with such questions the an- 
swers previously made. 

The Court: I will treat the record that way. 

Mr. Currerriretp: Yes, I don’t want to make any fur- 
ther offer. 


The Court: I understand. I will treat the record as 
made up that way. 


Mr. Curperrretp: Well, then, what is the attitude of 
the opposite side with reference to the offer? 


438 


439 


42 


Mr. Burrers: Same objection. 


The Court: You have objected and I sustained the 
objection. { let it go in before the court. 


Mr. CurperrieLp: Yes, I understand, but I want to 
offer. I want to offer all of that now and I want to know 
if it is objected to. 


Mr. Burrers: Well, the same objections that were 
made when the witness was— 


Mr. CuiperFieLp: Well, there is a portion of it that is 
not objected to at all in the original. 


The Court: The record may be repeated just as it 
has been to each one of these instruments. 


Mr. CHIPERFIELD: Yes. 
The Court: The objections and everything else. 


Mr. Curperrietp: J don’t make myself clear to the 
court. Where there was no objection I want to now offer 
that to the jury. 


The.Courr: Oh, I see. 
Mr. Cureerrietp: If there is no objection. 
The Court: I did not understand that. 


Mr. Burters: I understood that was offered for the 
court. 

Mr. CurperFiELp: I know, but now in the presence of 
the jury I am offering it. | 

Mr. Butrers: We object to it. 


Mr. Curperrretp: That is what I want to know. I 
want to know if it is objected to. ) 


The Court: I sustain the objection. 
The defendant excepts. 


440 


43 


EXXHIBIT 1. 


THIS INDENTURE, made this eighth day of November, 
in the year of our Lord, one thousand eight hundred and 
eighty-three (A. D. 1883) between Henry L. Young, 
James H. Young and Mason Young, as trustees under the 
last will and testament of Henry Young, deceased, of the 
City, County and State of New York, party of the first 
part and the La Salle County Carbon Coal Company, a 
corporation created and organized under the laws of the. 
State of Illinois, party of the second part. | 


WirnesseEtu, that the said party of the first part for 
and in consideration of the sum of three hundred thous- 
sand dollars ($300,000) in hand paid by the said party of 
the second part, the receipt whereof is hereby acknowl- 
edged have and by these presents do remise, release, 
alien and convey unto the said party of the second part, 
its successors and assigns FOREVER, all those certain 
tracts, pieces or parcels of land situate in the County of 
La Salle, and State of Illinois, known and described as 
follows, to-wit: 


All the east half (EK. 4) of section fourteen (14) in 
township thirty-three (33) north range one (1) East of 
the Third Principal Meridian, containing three hundred 
and four and twenty-two one hundredths (304.22/100) 
acres more or less together with the shaft located on 
said east half (EH. 4) of said section fourteen (14) known 
as ‘‘Carbon Shaft,’’ and all of the appurtenances to said 
shaft meaning expressly to include as real estate in the 
word ‘‘appurtenances”’ all buildings, steam engines, boil- 


ers, shafting, belting and implements now standing or 


44] 


being in use at or in said shaft, all of which are de- 
clared to be fixtures and part of the realty, excepting 
and reserving the rights of way over said east half (KE. 
4) acquired by the Chicago and Rock Island Railroad 


44 


Company and the [llinois and Michigan Canal and also 
excepting and reserving that part of said East half (1. 
+) known and described as lot seven (7) in block twenty- 
five (25), lots twelve (12), thirteen (13), sixteen (16), 
and seventeen (17), in block forty-one (41), lot five (5), 
and twenty-two (22) feet off of lot seventeen (17) in 
block forty-three (48), lot two (2) in block forty-nine 
(49), lots five (5) in block fifty (50), and lots one (1), 
seven (7), twenty (20) and twenty-one (21) in block 
fifty-two (52) in the Town of Rockwell, said lots con- 
taining 1n all about two acres. 


And all of the coal, together with the right to mine the 
same, under the surface of the south fraction of the north- 
east quarter (N. E. +) of section twenty-three (23), in the 
township and range aforesaid, lying south of the Illinois 
River and containing one hundred and thirteen and forty- 
one hundredths (118 40/100) acres more or less. 


And all of the coal, together with the right to mine the 
same, under the surface of the northwest fraction of the 
northwest quarter (N. W. 4+) of section twenty-four (24) 
in the township and range aforesaid, containing fifty- 
eight and ninety-five one hundredths (58 95/100) acres 
more or less. 


And all of the southeast quarter (S. E. 4+) of section 
twenty-four (24) in the township and range aforesaid, 
and of that part of section twenty-five (25) in the town- 
ship and range aforesaid, described as follows, to-wit: 
commencing at the northeast corner of the northwest 
quarter of the southwest quarter of said section twenty- 
five (25); thence northeast through the northeast corner 
of the southeast quarter of the northwest quarter of said 
section twenty-five (25), a total distance of seventy and 
seventy one hundredths (70 70/100) rods; thence south- 
easterly at right angles with said last mentioned line four- 


13 


11 


45 


teen and fourteen one hundredths (14 14/100) rods; 
thence to northeast corner of said section twenty-five 
(25); to thence west on the north line of said section 
twenty-five (25) to the northwest corner of the northeast 
quarter of the northwest quarter of said section twenty- 
five (25); thence south to the place of beginning, contain- 
ing one hundred and twenty (120) acres more or less. 


And all of the northwest quarter (N. W. 4) of the south- 
west quarter (S. W. +) of section nineteen (19), township. 
thirty-three (33) north and range two (2) east of the 
third principal meridian, and the west four and one- 
quarter (44) acres of the south fraction of the northwest 
quarter (N. W. 4) of said section nineteen (19) in the 
township and range last aforesaid. 


Also all of that portion of the east half (EH. 4) of the 
southwest quarter (S. W. +) of section eleven (11) in 
township thirty-three (33) north and range one (1) east of 
the third principal meridian, lying north and west of the 
bed of the Little Vermilion River, containing forty-five 
(45) acres more or less, and all of that portion of the 
southeast (S. E.) corner of the west half (W. 4) of said 
southwest.quarter (S. W. +) of said section eleven (11) 
described as follows, to wit: Beginning at the southeast 
(S. E.) corner of the west half (W. 4) of the southwest 
quarter (S. W. 4+) of section eleven (11) in township 
thirty-three (33) north and range one (1) east of the 
third principal meridian, running thence north seven and 
one-half degrees (74 degrees) west, eight (8) chains and 
ninety-eight (98) links to a point where said line inter- 
sects the right of way of the Illinois Central Railroad 


‘Company; thence south on the east line of said right of 


way with the curve of said railroad to the south line of 
said southwest quarter; thence north eighty-two and one- 
half degrees (824 degrees), east two (2) chains and 
thirty-six (36) links to the place of beginning, containing 


11 


46 


sixty-six one hundredths (66/100) of an acre; together 
with the shaft located on said southwest quarter (S. W. 4) 
of said section eleven (11) known as ‘‘ Kentucky Shaft,”’ 
and all of the appurtenances to said shaft, meaning ex- 
pressly to include as real estate in the word ‘‘appur- 
tenances’’ all buildings, steam engines, boilers, shafting, 
belting and implements now standing or being in use at or 
in said shaft, all of which are declared to be fixtures and 
part of the realty. 


And all of the coal, together with the right to mine the 
same, under the surface of the southeast quarter (S. E. 
1) and of the southwest quarter (S. W. +) and of the 
west half of the northwest quarter (W. 4 of N. W. 4) of 
said section eleven (11) in the township and range afore- 
sald. 


Also all of that portion of the southwest quarter of the 
southeast quarter (S. W. 4 of S. HE. +) of section three 
(3), in township thirty-three (33) north and range one (1) 
east of the third principal meridian east of the right of 
way of the Illinois Central Railroad Company, described 
as follows, to wit: Beginning at the northeast (N. E.) 
corner of the southwest quarter of the southeast quarter 
(S. W. 4 of S. E. 4) of section three (3) in township 
thirty-three (33) north, and range one (1), east of the 
third principal meridian; thence south eight degrees (8 


~ degrees), east twelve and ninety-one hundredths (12 


90/100) chains; thence south eighty degrees (80 degrees), 
west three and forty-two hundredths (3 42/100) chains 
to the east line of said right of way; thence northwesterly 
with the line of said right of way, to the north line of said 
southwest quarter of southeast quarter (S. W. + of S. He 
+); thence north eighty-two and one-half degrees (824 
degrees), east nine and nineteen hundredths (9 19/100) 
chains to the place of beginning, containing seven and 


10 


47 


seventy-four one hundredths (7 74/100) acres, and all of 
that strip of ground in the northwest quarter of the south- 
east quarter (N. W. + of S. E. 4) of section three (3) 
aforesaid, to be used for a road twenty-four (24) feet 
wide, running parallel with the east line of the right of 
way of the Illinois Central Railroad Company, com- 
mencing at the northwest corner of the above described 
seven and seventy-four one hundredths (7 74/100) acres, 
and running fifteen and fifty-nine one hundredths (15. 
09/100) chains in a northwest direction to the center of 
the La Salle and Homer road, containing fifty-six one 
hundredths (56/100) acres. 


And all of the coal, together with the right to mine the 
same, tnder the surface of the southeast quarter (S. EH. 
+) and of the south half of the northeast quarter (S. § of 
N. E. 4), and of the northeast quarter of the southwest 
quarter (N. E. + of S. W. +) and of the southeast quarter 
of the northwest quarter (S. HE. 4 of N. W. +) of said 
section three, in the township and range aforesaid. 


And all of the coal, together with the right to mine the 
same, under the surface of the west half of the east half 
of the southeast quarter (W. 4 of E. 4 of S. KE. +) and of a 
strip of land thirty-five (35) rods in width off the east 
side of the west half of the southeast quarter (W. 4 of 
S. E. +), containing seventy-five acres, and of the north- 
east quarter (N. HE. +), except the southwest quarter of 
the southwest quarter (S. W. + of S. W. +) thereof, con- 
taining 150 acres, and of the north half (N.4) of the north- 
west quarter (N. W. 4), and of the north twenty (20) 
rods of the south half (S. 4) of the northwest quarter 
(N. W. 4) of section ten (10), in township thirty-three 
(33) north and range one (1) east of the third principal 
meridian. 


And also the shaft located on or near the southwest 


48 


quarter (S. W. +) of section fourteen (14), in township 
thirty-three (33) north, and range one (1) east of the 
third principal meridian, known as ‘‘ La Salle Shaft,’’ and 
all of the appurtenances to said shaft, meaning expressly 
to include as real estate in the word ‘‘appurtenances”’ all 
buildings, steam engines, boilers, shafting, belting and 
implements now standing or being in use at or in said 
shaft, all of which are declared to be fixtures, and part 
of the realty. 


And all of the east part of the northwest quarter (N. W. 
1) of said section fourteen (14) in the township and range 
aforesaid conveyed or intended so to be by Samuel B. 
Carter to Edmund D. Taylor, by deed dated November 2, 
1863, and recorded December 2, 1863, in La Salle County 
records, in book 88, page 424, excepting and reserving 
property conveyed by the Northern [llinois Coal and Iron 
Company of La Salle, to the Town of La Salle, and to 
school district No. 1, in town 33, range 1 east by deeds 
recorded in La Salle County records, in book 149, page 
455, and book 139, page 146. 


And all of the coal, together with the right to mine the 
same, under the surface of that part of the northwest 
quarter (N. W. 4+) of said section fourteen (14) in the 
township and range aforesaid, conveyed or intended so to 
be by Daniel Evans, to the Northern Illinois Coal and 
Iron Company of La Salle, by deed dated April 23, 1862, 
and recorded May 5, 1862, in La Salle County records, in 
book 82, page 108. 


And all of the southwest fractional quarter (S. W. 
Fr’1 4) of said section fourteen (14), in the township and 
range aforesaid, containing one hundred and forty-seven 
and thirty-one one hundredths (147 31/100) acres more 
or less, excepting therefrom an undivided sixty of six 
hundred and thirty-one (60-631) parts of lots described 


49 


in a deed of the sheriff of La Salle County to Edmund D. 
Taylor, dated the 2nd day of May, 1845, and recorded in 
La Salle County records, in book 16, page 512, excepting 
also tracts conveyed by Edmund D. Taylor or the North- 
ern [llnois Coal and Iron Company of La Salle, prior to 
March 1, 1873. 


And the west seventy-five (75) feet of lots numbered 
eleven (11), and twelve (12), in block number thirty (30) 
Adams addition to La Salle, subject to the right of way of 
the Chicago, Rock Island and Pacific Railroad Company, 
and to the public hghway. 


And the right to occupy and use the passageways, en- 
tries, air courses and stables now constructed and exist- 
ing under block number thirty (80) in Adams addition to 
La Salle, or so much thereof as belongs to the Illinois 
Central Railroad Company, and under the right of way of 
said Illinois Central Railroad Company, east of and ad- 
joining said block, in the City of La Salle, County of La 
Salle, and State of Illinois, subject, however, to the pro- 
visions and conditions of that certain Indenture executed 
by said company to said Henry L. Young, James H. Young 
and Mason Young, as trustees under the last will of Henry 
Young, deceased, dated May 24, 1883, and recorded in La 
Salle County records, in book 238, page 394. 


And all of lots numbered one (1) and two (2) in block 
one hundred and forty-seven (147) and lots numbered 
one (1) and two (2), in block one hundred and forty-eight 
(148), in the City of La Salle. 


And all of the southeast fractional quarter (S. KE. Fr’! 
1) and the southwest fractional quarter (8S. W. Fr’! +), 
and the south fractional half (S. Fr’1 4) of the north half 
(N. 4) and the north fractional half (N. Fr’l 4) of the 
northeast quarter (N. EH. +) of section twenty-one (21), 
in township thirty-three (33) north and range one (1) 
east of the third principal meridian. 


00 


Together with all and singular the tenements, heredita- 
ments and appurtenances thereunto belonging, or in any: 
wise appertaining, and the reversion and reversions, re- 
mainder and remainders, rents, issues and profits thereof ; 
and also the estate, right, title, interest, property, posses- 
sion, claim and demand whatsoever, as well in law as in 
equity of the said party of the first part, of, in, and to the 
same, and every part and parcel thereof, with the appur- 
tenances and fixtures, to have and to hold the said prem- 
ises above described, with the appurtenances, unto the said 
party of the second part, its successors and assigns for- 
ever.— 


And the said Henry L. Young, James H. Young and 
Mason Young, as trustees under the last will and testa- 
ment of Henry Young, deceased, for themselves, their 
successors and assigns, do covenant, promise and agree 
to and with said party of the second part, its successors 
and assigns, that they have not done or suffered to be done 
anything whereby the said premises above described are 
or may be in any manner encumbered or charged, and 
that the said premises against all persons lawfully claim- 
ing or to claim the same, by, through, or under them they 
will warrant and forever defend. 


In Witness WHEREOF, the said parties of the first part 
have hereunto set their hands and seals the day and year 
first above written. 

Witness 


Henry A. JAMEs. 
Henry L. Youna, Trustee. [SHau.] 
James H. Youne, Trustee. [SEAt.] 
Mason Youne, Trustee. [SEAL] 


OL 


Stave or New York, 
County or New York, } Ss. 
Ciry or New York. 


I, Henry A. James, a notary public in and for the said 
city and county, in the state aforesaid, do hereby certify 
that Henry L. Young, James H. Young and Mason Young, 
trustees under the last will and testament of Henry Young 
deceased who are personally known to me to be the same 
persons whose names are subscribed to the foregoing 
instrument, appeared before me this day in person and 
acknowledged that they signed, sealed and delivered the 
said instrument as their free and voluntary act as such 
trustees for the uses and purposes therein set forth. 


Given under my hand and notarial seal this sixteenth 
day of November, A. D. 1883. 
[ SEAL. | Henry A. JAMES, 
Notary Public, 
New York County. 


Which said paper is endorsed upon the back thereof as 
follows: 

‘“‘The trustees under the will of Henry Young to the 
La Salle County Carbon Coal Company. Deed. Edward 
C. Mason, Henry B. Mason, Alfred Bishop Mason, coun- 
sellors-at- law, Chicago.’’ 

(Auso) ‘*$300,000 November 8, ’83. State of [linois, 
La Salle County, ss. No. 31524. This instrument was 
filed for record this 5th day of December, A. D. 1883, at 
34 o’clock p. m., and is duly recorded in book 229 of 
records, page 61. Stephen Arnold, Recorder.’’ 


D2 


EXHIBIT 3. 


THis InpENTURE, made this Ist day of October, in the 
year of our Lord One Thousand Hight Hundred and 
Ninety-Two, between the Illinois Valley Coal Company 
of La Salle County and State of Illinois party of the first 
part, and The La Salle County Carbon Coal Company 
party of the second part, Witnesseth, That the said 
party of the first part, for and in consideration of the 
sum of One Hundred and Forty-three Thousand 
($143,000.) Dollars and other valuable consideration to it 
in hand paid, by the said party of the second part, the 
receipt whereof is hereby confessed and acknowledged, 
has granted, bargained, sold, remised, released, aliened, 
and confirmed, and by these presents do grant, bargain, 
sell, remise, alien and confirm unto the party of the second 
part, and to its successors and assigns, forever, all those 
certain pieces or parcels of land, situate, lying and being 
in the County of La Salle, State of linois, known and de- 
scribed as follows to-wit: 


All its real estate, lands, tenements and coal property 
of every kind or sort, consisting of lands with coal under 
them and of coal underlying other lands and coal shafts, 
railway tracks thereon in the township numbered Thirty- 
three (33) North of Range One (1) East of the Third 
Principal Meridian in the State of Illinois, all of said 
lands and coal being in the County of La Salle in the said 
state, for a particular description of which reference is 
made to the following described deeds conveying titles to 
the said Illinois Valley Coal Company, viz.: a deed of 
Charles G. Wicker and wife to said company dated March 
27, A. D. 1870, and recorded the 30th day of April, A. D. 
1870. Also a deed from said Wicker and wife to said com- 
pany dated December 5, 1881, and recorded the 14th day of 
same month. Also a deed from the said Wicker and wife 


D8 


dated March 1, 1884, and recorded on the 28th day of the 
same month, all in the records of the said La Salle County. 
Also two deeds of Horace White and wife, each dated the 
twentieth day of March, A. D. 1865, and both recorded in 
said recorder’s office on the 13th day of May, A. D. 1865. 
Also a deed of Margaret Evans, dated the 9th day of 
June, A. D. 1884, and recorded on the 28th day of March, 
A. D. 1885, in same office. 


Also a deed of Henry C. Freeman and wife, dated No- 
vember 16, A. D. 1871, and recorded on the 31st day of 
May, A. D. 1872. A deed from Mary Ann Leonard, dated 
April 25, A. D. 1870, and recorded June 20th, of same 
year. 


A deed of Morris Neustadt and wife, dated June 9, 
1870, and recorded July 20th, of same year. A deed of 
Lyne 8. Whitmore, dated March 1, 1872, and recorded 
May 31st, same year. A deed of Lester Dolley and wife, 
dated March 4, 1865, and recorded May 13th, same year. 
Also a deed of Rachel Neustadt, Morris Neustadt, Byron 
Watson and others, dated June 2, 1870, and recorded July 
20th, same year. Also a deed of Hiram Holmes and wife 
and Horace Holmes and others dated March 28, 1887, 
and recorded April 14, 1890. Also a deed of Emeline E. 
Snow and George W. Snow, dated July 7, 1870, and 
recorded September 3, 1870. — 


Also a deed of Wiliam Chumasero and Amos D. Brown, 
executors, dated May 13, 1870, and recorded June 20, 1870. 


All of said records being the records of La Salle County, 
Illinois. Also a deed of J. D. Caton and his wife dated 
June 10, 1892, and recorded August 23, 1892. 

Also the Kast Half of the Southeast Quarter of Section 
Twenty-six (26) in the Township Thirty-three (33) North 
of Range One (1) east of the Third. Principal Meridian, 


o4 


State of Illinois, deed by certain heirs at law, each one- 
tenth and recorded the 19th day of October, 1891. 


And the said first party agrees also that if by possibility 
there shall be any error or defect in the description of the 
property hereby intended to be described and conveyed 
which it is understood is all the property of every nature 
and kind belonging to the said first party, in said town- 
ship or said County of La Salle, it will at any time on re- 
quest make the conveyance perfect and correct such error. 


In Witness Wuereor, the Illinois Valley Coal Com- 
pany has caused this deed to be executed by the proper 
officers and the seal of the respective company to be here- 
to affixed and attested. 

(Signed.) ALLEN SHELDON, 
Vice President Illinois Valley Coal Company. 


WITNESS: 
JAMES G. MILLER, 
JAMES JOY. 

[ SEAL. | 


ATTEST: 
F. O. Wyatt, 
Secretary. 


State oF MicHigan, 
S 
County oF WAYNE. 


On this 14th day of October, A. D. 1892, before me, a 
notary public in and for said county, personally came the 
above named Allan Sheldon, vice president, known to me 
to be the person named in and who executed the above 
instrument, and acknowledged that he executed the same 
for the intents and purposes therein named. 


(Signed.) James G. Minuer, 
Notary Public in and for Wayne County, Michigan. 
[ SEAL. | 


4}5) 


(Attached to which is the following slip) : 


State oF MicHican, 
SS. 
County oF WAYNE. 


I, William May, clerk of said county, and clerk of the 
Circuit Court for the County of Wayne, which is a court 
of record, having a seal, do hereby certify, that James G. 
Miller, whose name is subscribed to the certificate or proof 
of acknowledgment of the annexed instrument and therein 
written, was, at the time of taking such proof or acknew]l- 
edgment, a notary public in and for said county, duly 
commissioned and qualified, and duly authorized to take 
the same. And further, that I am well acquainted with 
the handwriting of such notary public, and verily believe 
that the signature to the said certificate or proof of 
acknowledgment is genuine. I further certify that said 
instrument is executed and acknowledged according to 
the laws of this state. 

In Testrmony WuereoF, I have hereunto set my hand 
and affixed the seal of said court and county, at Detroit, 
this 14th day of October, A. D. 1892. 

(Signed.) Wm. May, Clerk. 
By Samvuget Steward, Deputy Clerk. 
[ SEAL. | 
(On the back appears the following) : 


Illinois Valley Coal Company to La Salle County Car- 
bon Coal Company. 


$143,000. Oct. 1, 792. 


A LLINOI , 
Srigs OF TON, fg No. 4,810 
Tuts Instrument was filed for record this 20th day of 
October, A. D. 1892, at eight o’clock a. m., and is duly 
recorded in book 306 of records, page 7. 
STEPHEN ARNOLD, 
Recorder. 


o6 


EXHIBIT ‘‘4.”’ 


‘Tats InpentuRrE, made this twentieth day of March 
in the Year of Our Lord One Thousand Eight Hundred 
and Sixty-five between Horace White & Martha H. White, 
his wife, of the City of Chicago, County of Cook & State 
of Illinois, party of the first part, and the Illinois Valley 
Coal Company, a corporation created by an act of the 
Legislature of the State of Illinois, approved February 
15, 1865, party of the second part, 


WirnessetH, That the said party of the first part, for 
and in consideration of the sum of Hight Thousand 
($8,000) Dollars, in hand paid by the said party of the ~ 
second part, the receipt whereof is hereby acknowledged, 
and the said party of the second part forever released 
and discharged therefrom, have granted, bargained, sold, 
remised, released, conveyed, aliened and confirmed, and 
by these presents do grant, bargain, sell, remise, release, 
‘convey, alien and confirm unto the said party of the sec- 
ond part, and to their heirs and assigns forever all the 
following described lot, piece, or parcel of land, situate 
in the County of La Salle and State of Illinois and known 
and described as follows, to-wit: 


An undivided one-half (4) of the Southwest quarter 
(+) of Section number twenty-four (24) in Township 
number thirty-three (33) of Range number one (1) East 
of the Third (8rd) Principal Meridian, containing eighty 
(80) acres of land more or less. TocrTHER with all and 
singular the hereditaments and appurtenances thereunto 
belonging, or in anywise appertaining, and the reversion 
and reversions, remainder and remainders, rents, issues 
and profits thereof: And all the estate, right, title, in- 
terest, claim or demand whatsoever, of the said party of 
the first part, either in law or equity, of, in and to the 
above bargained premises, with the hereditaments and 


o7 


appurtenances. To HAVE AND TO HOLD the said premises 
above bargained and described, with the appurtenances, 
unto the said party of the second part, their heirs and 
ASSIQNS FOREVER. 


And the said Horace White & Martha H. White, party 
of the first part, for their heirs, executors, and admin- 
istrators, do covenant, grant, bargain and agree, to and 
with the said party of the second part, their heirs and 
assigns, that at the time of the ensealing and delivering 
of these presents, they are well seized of the premises 
above conveyed, as of a good, sure, perfect, absolute and 
indefeasible estate of inheritance in law, in fee simple: 
And have good right, full power, and lawful authority to 
grant, bargain, sell and convey the same, in manner and 
form aforesaid, and that the same are free and clear 
from all former and other grants, bargains, sales, liens, 
taxes, assessments and incumbrances of what kind and 
nature soever; and the above bargained premises, in the 
quiet and peaceable possession of the said party of the 
second part their heirs and assigns, against all and every 
other person or persons lawfully claiming or to claim 
the whole or any part thereof the said party of the first 
part shall and will waRRANT AND FOREVER DEFEND. 


And the said Horace White & Martha H. White, party 
of the first part, hereby expressly waive and release any 
and all right, benefit, privilege, advantage and exemption 
under or by virtue of any and all statutes of the State of 
Illinois providing for the exemption of Homesteads from 
sale on execution or otherwise, and especially under the 
Act entitled, ‘‘An Act to Exempt Homesteads from sale 
on execution, passed by the General Assembly of the 
State of Illinois, A. D. 1851, and approved February 11, 
A. D. 1851, and an Act entitled, ‘‘An Act to amend an Act 
entitled, ‘An Act to Exempt Homesteads from sale on 


o8 


execution’ ’’ passed by said Assembly, A. D. 1857, and 
approved February 17, A. D. 1857. 


In Wirness Wuereor, the said party of the first part 
do hereunto set their hands and seals the day’ and year 


first above written. 
Horace WHITE, [ SEAL. | 


MartHa H. Wuitr. [SBAL.] 
Interlineation in third line made before execution. .- 


J. Lewis Les, 
Notary Publi. 


(Revenue stamps).’’ 


‘‘Srate oF [nurwNots, 
County oF Cook. | SS. 
Ciry oF CHICAGO. 


I, J. Lewis Lee, a notary public in and for the City of 
Chicago in and for said county, in the State aforesaid, do 
hereby certify, That Horace White and Martha H. White, 
personally known to me to be the same persons whose 
names are subscribed to the foregoing WARRANTY DEED, 
appeared before me this day in person and acknowledged 
that they signed, sealed and delivered the said instrument 
of writing, as their free and voluntary act, for the uses 
and purposes therein set forth. | 


And the said Martha H. White, wife of the said Horace 
White, having been by me examined separate and apart, 
and out of the hearing of her husband, and the contents 
and meaning of the said deed having been by me made 
known and fully explained to her acknowledge that she 
had freely and voluntarily executed the same, and re- 
linquished her dower, and all right, title and interest te 
the lands and tenements therein mentioned, and expressly 
waived and released all right, claim, benefit, privilege, ad- 
vantage and exemption under any and all. ‘Homestead 


a9 


Exemption Laws,’ so called, without the compulsion of her 
said husband, and that she does not wish to retract the 
same. 


Given under my hand and notarial seal this twentieth 


day of March, A. D. 1865. 
J. Lewis Len, 


Notary Public.’’ 
( J. Lewis Les, ) 
( Notary Public, ) 
( City of Chicago. ) 


On the back of the foregoing instrument appears the 


following: 
“WARRANTY DEED. 


from 
Horace White 
& 
Martha H. White 
to 
The Illinois Valley Coal Company. 


STATE OF ILLINOIS, 
La Saute County, Ny palettes 


THis INstRUMENT was filed for record on the 13th day of 
May, A. D. 1865, at the hour of 84 o’clock a. m. and duly 


recorded in book 102 of deeds at page 215. 
H. Sritver, 


Clerk of Circuit Court and Ex-Officio Recorder.”’ 


EXHIBIT 5. 


(Warranty Deed.—Printed and for sale at Tribune 
Office, 51 Clark Street, Chicago.) 


Tis InpentuRE, Made this twentieth day of March in 
the year of our Lord One Thousand Hight Hundred and 
Sixty-five between Martha H. White, late Martha H. Root, 
wife of Horace White, and Horace White, of the City of 


60 


Chicago, County of Cook and State of Illinois, party of 
the first part, & the Illinois Valley Coal Company, a cor- 
poration created by act of the Legislature of the State of 
Illinois approved February 15, 1865, party of the second 
part, 


WirnessETH, that the said party of the first part, for 
and in consideration of the sum of eight thousand ($8,000) 
dollars, in hand paid by the said party of the second part, 
the receipt whereof is hereby acknowledged, and the said 
party of the second part forever released and discharged 
therefrom, have granted, bargained, sold, remised, re- 
leased, conveyed, aliened, and confirmed, and by these 
presents do grant, bargain, sell, remise, release, convey, 
alien and confirm unto the said party of the second part, 
and to their heirs and assigns forever, all the following 
described lot, piece, or parcel of land, situate in the 
County of La Salle and State of Illinois, and known and 
described as follows, to-wit: 


An undivided one-half (4) of the Southwest Quarter (4) 
of Section Number Twenty-four (24) in Township Num- 
ber Thirty-three (33) of Range Number One (1) East of 
the Third (3rd) Principal Meridian, containing eighty 
(80) acres of land more or less. ; 

ToGrTHER with all and singular the hereditaments and 
appurtenances thereunto belonging or in any wise apper- 
taining, and the reversion and reversions, remainder and 
remainders, rents, issues and profits thereof; and all the 
estate, right, title, interest, claim or demand whatsoever, 
of the said party of the first part, either in law or equity, 
of, in and to the above bargained premises, with the 
hereditaments and appurtenances. To HAVE AND TO HOLD 
the said premises above bargained and described, with the 
appurtenances, unto the said party of the second part, 
their heirs and assigns forever. 


61 


And the said Martha H. White and Horace White, party 
of the first part, for their heirs, executors and administra- 
tors, do covenant, grant, bargain and agree, to and with 
the said party of the second part, their heirs and assigns, 
that at the time of the ensealing and delivering of these 
presents, they are well seized of the premises above con- 
veyed, as of a good, sure, perfect, absolute and inde- 
feasible estate of inheritance in law, in fee simple: And 
have good right, full power, and lawful authority to grant, 
bargain, sell and convey the same, in manner and form 
aforesaid; and that the same are free and clear from all 
former and other grants, bargains, sales, liens, taxes, 
assessments and incumbrances of what kind and nature 
soever; And the above bargained premises, in the quiet 
and peaceable possession of the said party of the second 
part, their heirs and assigns, against all and every other 
person or persons lawfully claiming or to claim the 
whole or any part thereof the said party of the first part 
shall and will WARRANT AND FOREVER DEFEND, 


And the said Martha H. White and Horace White, party 
of the first part, hereby expressly waive and release any 
and all right, benefit, privilege, advantage and exemption 
under or by virtue of any and all statutes of the State of 
Illinois providing for the exemption of homesteads from 
sale on execution or otherwise, and especially under the 
act entitled, ‘‘An Act to exempt homesteads from sale on 
execution,’’ passed by the General Assembly of the State 
of Illinois, A. D. 1851, and approved February 11, A. D. 
1851, and an act entitled, ‘‘An Act to amend an act en- 
titled, ‘An Act to exempt homesteads from sale on execu- 
tion,’’’ passed by said Assembly, A. D. 1857, and ap- 
proved February 17, A. D. 1857. 


In Witness WueEreor, the said party of the first part 


62 


do hereunto set their hands and seals the day and year 


above written. 
MartrHa H. Waits, [SEBAL. | 


Horace WHITE. [SEAL | 


Interlineation in third line made before execution. 


REVENUE STAMP. 





Of Deed, Instrument or Writing whereby 
lands, tenements, or other realty shall be 
conveyed, the value of which does not ex- 


ceed $500 otee te ee, ee $ .50 
From’$500 to'$1 00002) Ate eee 1.00 
Every additional $500 or fractional part... .50 
(Revenue Stamps) 

8e 


(On the back appears the following) : 


Stave oF ILLINOIS, 
Cook County, ss. 
City oF CHICAGO. 


I, J. Lewis Lee, a notary public in and for the City of 
Chicago in and for said county, in the State aforesaid, do 
hereby certify, that Horace White and Martha H. White, 
who are personally known to me to be the same persons 
whose names are subscribed to the foregoing warranty 
deed, appeared before me this day in person, and acknowl- 
edged that they signed, sealed and delivered the said in- 
strument of writing, as their free and voluntary act, for 
the uses and purposes therein set forth. 


And the said Martha H. White, wife of the said Horace 
White, having been by me examined separate and apart, 
and out of the hearing of her said husband, and the con- 
tents and meaning of the said deed having been by me 
made known and fully explained to her, acknowledged 
that she had freely and voluntarily executed the same, and 


63 


relinquished her dower, and all right, title and interest to 
the lands and tenements therein mentioned, and expressly 
waived and released all right, claim, benefit, privilege, ad- 
vantage and exemption under any and all Homestead 
Exemption Laws, so-called, without the compulsion of her 
said husband, and that she does not wish to retract the 
same. 


Given under my hand and notarial seal this twentieth 


day of March, A. D. 1865. 
J. Lewis Luz, 


[ SEAL. | Notary Publi. 


WARRANTY DEED. 
From 
Martha H. White 
and 
Horace White 
to 
The Illinois Valley Coal Company. 


STATE OF ILLINOIS, 
La Sauue County. No. 1727 


This instrument was filed for record on the 13th day of 
May, A. D. 1865, at the hour of 84 o’clock a. m., and duly 
recorded in book 103 of deeds, ete., at pages 8, 9 and 10. 


H. Srzver, 
Clerk of Circwt Court and ex-Officio Recorder. 


EXHIBIT 6. 


THis InpentuRE WitneEssetH That the Grantors, 
Cuarues G. Wicker and EizasetH J. Wicker, his wife, 
of the City of Chicago, in the County of Cook and State 
of Illinois, for the consideration of Five Dollars, convey 
and quitclaim to the Inurmnors VaLtuEy Coat Company, a 
corporation organized and existing under and by virtue 


64 


of the laws of the State of Illinois, all interest in the fol- 
lowing described real estate, to-wit: the Southeast frac- 
tional quarter of Section Twenty-two (22), Town. Thirty- 
three (33) North, Range One (1) East of the Third Prin- 
cipal Meridian, said quarter section including the Illinois 
River passing through it, containing one hundred and 
sixty acres, more or less. 


Also, all of the West three-quarters of the Southwest 
Quarter of Section T’'wenty-three (23) in said Town. 
Thirty-three (33), containing one hundred and twenty 
(120) acres, more or less; also, all the coal and coal mines 
and all other mines and minerals which are situate on or 
may be found in, under or upon the East Half of the 
Northeast Quarter of the Southwest Quarter of said Sec- 
tion Twenty-three (23), containing twenty (20) acres, 
more or less, together with all mining rights and privi- 
leges, necessary to mine, dig, raise and remove said coal 
or other minerals from said premises and all the occupa- 
tion and use of said premises convenient and necessary in 
and while so doing and also all right to the surface of the 
said premises except so far as the same has heretofore 
been conveyed by Charles Todd to the [Illinois Central 
Railroad; also, all that part of the Northwest Fractional 
Quarter of said Section Twenty-three (23) situate south 
of the [Illinois River and westerly of the line of the Illi- 
nois Central Railroad, and containing about twenty acres 
more or less, and including all privileges and mining 
rights beneath said Illinois River and said Illinois Central 
Railway pertaining or belonging thereto. 


Also, all of the Northeast Quarter of the Northeast 
Quarter of Section Twenty-seven (27) in said Town. 
Thirty-three (33), containing forty (40) acres more or 
less; excepting and reserving nevertheless from this con- 
veyance, the interest in that portion of the Southeast 


6d 


Quarter of Section Twenty-two (22) lying northerly of 
the [Illinois River heretofore conveyed by William B. 
Ogden to Harriet Brown, hereby conveying to the said 
Illinois Valley Coal Company all the rights and interests 
therein not so conveyed by said Ogden to said Harriet 
Brown, to-wit: the right to mine coal and other minerals 
on and beneath said premises and to occupy the same as 
may be necessary while so doing, all said real estate being 
situated in the County of La Salle in the State of Ihnois, 
hereby releasing and waiving all rights under and by 
virtue of the Homestead Exemption Laws of this state. 


Dated this first day of March, A. D. 1884. 


(Signed.) CHaRLEs G. WICKER, [ SEAL. | 
(Signed.) ExizaperH J. WICKER, [SEAL | 


State oF ILuino!s, } 
Ss. 
County oF Cook. | 


I, Frank J. Loesch, a notary public in and for said 
county in the state aforesaid, do hereby certify that 
Charles G. Wicker and Elizabeth J. Wicker, his wife, who 
are personally known to me to be the same persons whose 
names are subscribed to the foregoing instrument ap- 
peared before me this day in person and acknowledged 
that they signed, sealed and delivered the said instrument 
as their free and voluntary act, for the uses and purposes 
therein set forth, including the release and waiver of the 
right of homestead. 


Given under my hand and notarial seal this second day 


of July, A. D. 1884. 
Frank J. Lorscnu, 


[SEAL. | ; Notary Public. 


66 


(On the back appears the following) : 


Rate SZ any ik ) 20a. pt N. W. fr 4 23, 
a 8. es vee Hepsis will 
4, N. BE. 4, 8. W. 4, 23, 33, 1 ) N. HE. 4, N. E. 4, 27, 
3 


? 


S. 
We. 
Ki. 


QUITCLAIM DEED. 


Charles G. Wicker and Wife 
to 
Illinois Valley Coal Company. 
Mech. 1, 784. 
$5. 


STATE OF ILLINOIS, 
La Saute County. t ss No. 1446 


This instrument was filed for record this 28th day of 
March, A. D. 1885, at 23 o’clock P. m., and is duly recorded 
in book 246 of records, page 224. 

STEPHEN ARNOLD, 
Recorder. 


BeOS esis 


Tuis InpEntURE, Made this 4th day of March in the 
year of our Lord One Thounsand Eight Hundred and 
Sixty-five Between Lester Dolley and wife Sarah R. A. 
Dolley, party of the first part, and the Illinois Valley Coal 
Company, a corporation created by Act of the Legislature 
of the State of Illinois approved February 15, 1865, party 
of the second part, | 


WirnessetH, That the said parties of the first part, for 
and in consideration of the sum of Sixteen Thousand 
Dollars, lawful money of the United States of America, 
to them in hand paid by the said party of the second part, 
at or before the ensealing and delivery of these presents, 
the receipt whereof is hereby acknowledged, have aliened, 


67 


remised, released, conveyed and confirmed, and by these 
presents, do alien, remise, release, convey and confirm 
unto the said party of the second part, and their heirs and 
assigns forever, all the Southeast quarter of Section 
twenty-three (23), in Township Thirty-three (33) North 
of Range No. One (1) East of the Third Principal 
Meridian, (Excepting the right of way through said Sec- 
tion previously conveyed to the Illinois Central Railroad 
Company comprising about fifteen acres in the west part 
of said quarter Section), and also, the right of way over 
the North part of the West half of the Northeast quarter 
of Section twenty-six, Town. thirty-three (33) north of 
Range one East of 3rd Principal Meridian to connect said 
tract with the Illinois Central Railroad, provided the land 
occupied shall not be more than thirty feet in width, and 
of a length sufficient to reach the railroad by the shortest 
practicable route from the north line of said southeast 
quarter of Section twenty-three (23) above described. 
TocEetHeErR with all and singular the tenements, heredita- 
ments and appurtenances thereunto belonging or in any- 
wise appertaining, and the reversion and reversions, re- 
mainder and remainders, rents, issues and profits thereof, 
and also all the estate, right, title, interest ...... prop- 
erty, possession, claim and demand whatsoever, as well 
in law as in equity, of the said parties of the first part, of, 
in or to the above described premises, and every part and 
pareel thereof, with the appurtenances, to have and to 
hold all and singular the above mentioned and described 
premises, together with the appurtenances, unto the said 
party of the second part, their heirs and assigns forever. 


And the said Lester Dolley and Sarah R. A. Dolley, for 
their heirs, executors and administrators, do hereby 
covenant, promise and agree, to and with the said party of 
the second part, their heirs and assigns, that they have 
not made. done, committed, executed or suffered any act 


68 


or acts, thing or things whatsoever, whereby, or by means 
whereof, the above mentioned and described premises, or 
any part or parcel thereof, now are, or at any time here- 
after shall or may be impeached, charged or incumbered, 
im any manner, or way whatsoever, and that they are well 
seized of the premises above conveyed, have good right 
to sell and convey the same, that they are free from all 
incumbrances, and that the above bargained premises, in 
the quiet and peaceable possession of the second party, 
their heirs and assigns, they will forever warrant and 


defend. 


In Wirness Wuereor, the said party of the first part 
hereunto set their hand and seals the day and year first 
above written. 

Lester DOoLuey, [ SEAL. | 
SaraH R. A. Dotury. [sHat.] 


The words town thirty-three North of Range One Hast 
of 3d Principal Meridian, above line No. 19 were inter- 
lined before acknowledgment. 


SIGNED, SEALED AND DELIVERED in presence of P. W. 
Handy. . 
( U.S. Inter. Revenue Stamp, $10 ) 
( U.S. Inter. Revenue Stamp, $1 ) 
( U.S. Inter. Revenue Stamp, $5 ) 


STATE OF NEw York, ne 
Monroe County. 


I, P. W. Handy, notary public in and for said county 
in the state aforesaid, do hereby certify that Lester Dol- 
ley and Sarah R. A. Dolley, personally known to me to 
be the same persons whose names are subscribed to the 
foregoing warranty deed, appeared before me this day 
in person and acknowledged that they signed, sealed and 
delivered the said instrument of writing as their free 


69 


and voluntary act, for the uses and purposes therein set 
forth. 


And the said Sarah R. A. Dolley, wife of the said Les- 
ter Dolley, having been by me examined separate and 
apart, and out of the hearing of her husband, and the 
contents and meaning of the said deed having been by 
me made known and fully explained to her, acknow!l- 
edged that she had freely and voluntarily executed the 
same, and relinquished her dower, and all right, title and 
interest to the lands and tenements therein mentioned, 
and expressly waived and released all right, claim, ben- 
efit, privilege, advantage and exemption under any and 
all homestead exemption laws, so called, without the com- 
pulsion of her said husband, and that she does not wish 
to retract the same. 


Given under my hand and notarial seal this eighth day 


of March, A. D. 1865. 
P. W. Hanpy, 


[SEAL. | Notary Public. 
(Inter. Revenue Stamp, 5c.) 


Which said paper is endorsed upon the back thereof 
as follows: 


‘“Warranty Deed. From Lester Dolley and wife Sarah 
A. Dolley to Illinois Valley Coal Company. Use of.”’ 


(Also) ‘‘State of Illinois, La Salle County. No. 1726. 
This instrument was filed for Record on the 13th day of 
May, A. D. 1865, at the hour of 83 o’clock a. m. and duly 
recorded in Book 102 of Deeds at page 213. 4H. Silver, 
Clerk of Cireuit Court and Ex-Officio Recorder.’’ 

(Also) ‘‘Mail J. T. Ryerson Secty Ills Valley Coal Co. 
Chicago.”’ 

(Also) ‘‘Tribune Print, 51 Clark Street, Chicago.’’ 


70 


476-483 Eixutipir ‘‘8,”’ 


‘‘This indenture, made the second day of June, in the 
year of our Lord One Thousand Eight Hundred and Sev- 
enty between Rachel L. Neustadt, and Morris Neustadt 
her husband, Byron Watson and Laura Watson, his wife, 
Kmeline Snow, and George W. Snow her husband, party 
of the first part, and the Illinois Valley Coal Company, 
party of the second part, 


Witnesseth, that the said party of the first part, for 
and in consideration of Hight Hundred Dollars in hand 
paid by said party of the second part, the receipt whereof 
is hereby acknowledged, and the said party of the sec- 
ond part forever released and discharged therefrom, have 
Remised, Released, Sold, Conveyed and Quit-Claimed, 
and by these presents do Remise, Release, Sell, Convey 
and Quit-Claim, unto the said party of the second part, 
their heirs and assigns forever, all the right, title, inter- 
est, claim and demand which the said party of the first 
part have in and to the following described Lot, piece or 
parcel of land, to-wit: 


The East half, of the Southeast quarter, of the South- 
west quarter of Section numbered twenty-three (23), 
Township thirty-three (33), Range No. one (1) Hast of 
the Third Principal Meridian, containing twenty acres 
more or less, subject to the right-of-way over the same, 
of the [linois Central Railroad Company, as appears of 
record heretofore granted. 


The party of the first part reserve the right to quarry 
stone, and remove the same, from said tract of land by 
teams or otherwise, also the right to lay a track from 
the Illinois Central Railroad track to the quarry, for the 
removal of said stone. 


These reservations are made for the benefit of George 
W. Snow, Rachel L. Neustadt and Morris Neustadt, her 


71 


husband, and Emeline E. Snow, wife of G. W. Snow, 
and shall continue only during their lifetime. 


To have and to hold the same, together with all and 
singular the appurtenances and privileges thereunto be- 
longing, or in anywise thereunto appertaining; and all 
the estate, right, title, interest and claim whatever of the 
said party of the first part, either in law or equity, to 
the only proper use, benefit and behoof of the said party 
of the second part, their heirs and assigns forever. 


And the said Rachel L. Neustadt, formerly Rachel 
Watson, Morris Neustadt, Byron and Laura Watson, 
Emeline and George W. Snow, party of the first part, 
hereby expressly waive, reseal and relinquish unto the 
said party of the second part, their heirs, executors, ad- 
ministrators and assigns, all right, title, claim, interest 
and benefit whatever, in and to.the above demised prem- 
ises, and each and every part thereof, which is given by 
or results from all laws of this state pertaining to the 
Exemption of Homesteads. 


And the said party of the first part, for themselves 
and their heirs, executors and administrators, do cov- 
enant, promise and agree, to and with the said party of 
the second part, their heirs, executors, administrators 
and assigns, that they have not made, done, committed, 
executed, or suffered any act or acts, thing or things, 
whatsoever, whereby, or by means whereof, the above 
mentioned and described premises, or any part or parcel 
thereof, now are, or at any time hereafter shall or may 
be impeached, charged or incumbered, in any way or man- 
ner whatsoever other than described as above. 

In witness whereof, the said party of the first part 
hereunto set their hands and seals the day and year above 
written. 


(2 


Signed, sealed and delivered in presence of 
Racuet L. Neustapt. [SEAL. | 


EMELINE EK. Snow. [SBAL. | 
Morris N&USTADT. [ SEAL. | 
Byron Neustaprt. [ SEAL. | 
Laura WATSON. [SEAL. | 
Grorce W. Snow. [ SEAL. | 


(Revenue Stamp.) 


STATE oF ILLINOIS, ! = 
La SALLE Country. eae 


I, the undersigned, a Justice of the Peace in and for 
said County, and the State aforesaid, do hereby certify 
that Rachel Neustadt and Morris Neustadt her husband, 
personally known to me to be the same persons whose 
names are subscribed to the foregoing instrument of 
writing, appeared before me this day, in person, and ac- 
knowledged that he signed, sealed and delivered the said 
instrument of writing as their free and voluntary act, 
for the uses and purposes therein set forth. 


And the said Rachel Neustadt, wife of the said Morris 
Neustadt, having been by me examined separate and 
apart, and out of the hearing of her husband, and the con- 
tents and meaning of the said instrument of writing hav- 
ing been by me fully made known and explained to her, 
and she also by me being fully informed of her rights 
under the Homestead Laws of this State, acknowledged 
that she had freely and voluntarily executed the same, 
and relinquished her dower to the lands and tenements 
therein mentioned, and also all her rights and advan- 
tages under and by virtue of all laws of this state re- 
lating to the exemption of Homesteads, without the com- 
pulsion of her said husband, and that she does not wish to 
retract the same. 


73; 


Mivarinuer my Nand and v.i.-. 2. 3 seal this 20th 


day of June, A. D. 1870. 
Joun Forristau, J. P.’’ 


(Attached to the foregoing instrument are the follow- 
ing documents :) 


‘‘Srate oF ILLINoIs, < 
Wooprorp Country. 


I, M. L. Newell, a Notary Public in and for said County, 
in the State aforesaid, do hereby certify that Emeline E. 
Snow and George W. Snow, her husband, who are per- 
sonally known to me to be the same persons whose names 
are subscribed to the annexed deed, appeared before me 
this day, in person, and acknowledged that they had 
signed, sealed, and delivered the said instrument of writ- 
ing as their free act and deed for the uses and purposes 
therein expressed. 


Given under my hand and Notarial Seal this 21st day 
of June, A. D. 1860. 


M. L. NEwesE Lt, 
Notary Public.’’ 
(M. L. Newell, ) 
(Notary ) 
(Public, ) 
(Minonk, Woodford Co. Ill.) 


‘‘StTate oF ILLINots, a2 
Lee County. 


I, Simon Badger, a Justice of the Peace, in and for 
said County, and the State aforesaid, do hereby certify, 
that Byron Watson and Laura B. Watson, personally 
known to me as the same persons whose names are sub- 
seribed to the foregoing instrument of writing, appeared 
before me this day in person, and acknowledged that they 
sioned, sealed and delivered the said instrument of writ- 


74 


ing as their free and voluntary act, for the uses and pur- 
poses therein set forth. 


And the said Laura B. Watson, wife of the said Byron 
Watson, having been by me examined separate and apart, 
and out of hearing of her husband, and the contents and 
meaning of the said instrument of writing having been 
by me fully made known and explained to her and she 
also by me being fully informed of her rights under the 
Homestead Laws of this State, acknowledged that she 
had freely and voluntarily executed the same, and re- 
linquished her dower to the lands and tenements therein 
mentioned, and also all her rights and advantages under 
and by virtue of all laws of this State relating to the ex- 
emption of Homesteads, without the compulsion of her 
husband, and that she does not wish to retract the same. 


Given under my hand and ...... wo. Seal this 20th 


day of June, A. D. 1870. 
Stmon Bancer, J. P. [SEAL] 


‘“Srate or Inninots, | ,. 
Les County. Fea: 

I, James M. Hawley, Clerk of the County Court of said 
County, do hereby certify that Simon Badger, Esquire, 
whose name is subscribed to the proof or acknowledg- 
ment of the annexed instrument in writing, was, at the 
time of making such proof or acknowledgment, a Justice 
of the Peace in and for said County, duly commissioned, 
sworn and acting as such, and authorized to make the 
same; and further, that I am well acquainted with hand 
writing, and verily believe that the signature to the said 
proof or acknowledgment is genuine. 


In testimony whereof, I have hereunto set my hand 
and affixed the seal of said Court. Done at my office, in 
the City of Dixon, in said County, this 20th day of June, 


A. D.-1870. 
JAMES A. Hawtey, 


Clerk County Court.’’ 


483 


75 - 


(On the back of the foregoing instrument appears the 
following :) 
‘*Quit-Claim Deed. 
Rachel L. Neustadt 
Kimeline Snow and others 
to 
Illinois Valley Coal Co. 
June 2, 1870. 


State oF ILLINo!s, 
La SALLE County. ss. 2176. 


The within Deed was filed for record in the Recorder’s 
office of La Salle County, on the 20th day of July, A. D. 
1870, at 12 o’clock m., and duly recorded in Book 134 of 
Deeds, on page 626. 

Grete Hook, 
Recorder of La Salle Cownty.’’ 


FIXHIBIT 9. 


This indenture, made the Ninth day of June in the year 
of our Lord One Thousand Eight. Hundred and Seventy 
between Morris Neustadt and Rachel L. Neustadt his 
wife, party of the first part, and the Illinois Valley Coal 
Company, party of the second part, witnesseth, that the 
said party of the first part, for and in consideration of 
Fifty Dollars, in hand paid by the said party of the sec- 
ond part, the receipt whereof is hereby acknowledged, 
and the said party of the second part forever released 
and discharged therefrom, have remised, released, sold, 
conveyed and quit-claimed, and by these premises do re- 
mise, release, sell, convey and quit-claim unto the said 
party of the second part, their heirs and assigns forever, 
all the right, title, interest, claim and demand, which the 
said party of the first part has in and to the following 
described lot, piece or parcel of land, to-wit: 


76 


The Kast half of North East Quarter of South West 
Quarter of Section No. Twenty three (23) Township 
Thirty three (33) Range One (1) East of the third prin- 
cipal Meridian Containing Seventeen acres, more or less. 


To have and to hold the same, together with all and 
singular the appurtenances and privileges thereunto be- 
longing, or in anywise thereunto appertaining, and all 
the estate, right, title, interest and claim whatever, of 
the said party of the first part, either in law or equity, — 
to the only proper use, benefit and behoof of the said 
party of the second part, their heirs and assigns forever. 


In Witness Whereof, the said party of the first part 
hereunto set their hands and seals the day and year above 
written. 


Signed, Sealed and Delivered in Presence of 


Morris Npeustaprt. [ SEAL. | 
Racuet L. Neustapt, [SEAL. ] 


(Which said quit-claim deed is endorsed upon the face 
thereof with a $.50 United States Inter. Revenue Stamp.) 


(Which said quit-claim deed is endorsed upon the back 
thereof as follows:) 


‘‘State oF ILLINots, be 
La Saute County. ; 


I, The undersigned, a Justice of the Peace in and for 
said County, and the State aforesaid, do hereby certify, 
that Morris Neustadt and Rachel Neustadt, his wife, are 
personally known to me as the same persons whose names 
subseribed to the foregoing instrument of writing, ap- 
peared before me this day, in person, and acknowledged 
that they signed, sealed and delivered the said instru- 
ment of writing as their free and voluntary act, for the 
uses and purposes therein set forth. 


And the said Rachel Neustadt, wife of the said Morris 


487 


te 


Neustadt, having been by me examined separate and 
apart and out of the hearing of her husband, and the con- 
tents and meaning of the said instrument of writing hav- 
ing been by me fully made known and explained to her 
and she also by me being fully informed of her rights 
under the Homestead Laws of this State, acknowledged 
that she had freely and voluntarily executed the same, 
and relinquished her dower to the lands and tenements 
therein mentioned, and also all her rights and advan- 
tages under and by virtue of all laws of this State re- 
lating to the exemption of Homesteads, without the com- 
pulsion of her said husband, and that she does not wish 
to retract the same. 


Sivensinder my: hand andig. 20 .cve seal this 9th 


day of June, A. D. 1870. 
JOHN FoRBISTAL, J. P.’’ 


(Also) ‘‘C Quit-claim Deed. Morris Neustadt and wife 
to Illinois Valley Coal Co. June 9, 1870.”’ 

(Also, in pencil) ‘‘Mail Ill Valley Coal Co Oglesby 
Ills’’ . 

(Also) ‘‘State of Illinois La Salle County. No. 2175. 
This instrument was filed for record on the 20th day of 
July, A. D. 1870, at 12 0’clock m., and duly recorded in 
Book 138 of Records at page 25. C. H. Hook, Clerk of 
Circuit Court and Ex-Officio Recorder.’’ 


(Also) ‘‘Culver, Page & Hoyne, Stationers, Chicago.”’ 


Cross-Examination of the Witness Howard S. Hazen by 
Mr. Chiperfield. 


IT am the general manager of the La Salle County Car-. 
bon Coal Company. This company was organized in 
1883, in November, under charter from the State of DIh- 
nois. I have that charter at the present time. 


488 


489 © 


490 


491 


492 


495 


18 


Mr. CureerFIELD: I will ask you to introduce it, if you 
please, before the jury. 


Mr. O’Conor: You mean you want it? 


Mr. CHIPERFIELD: Yes, J want to offer it. I want to 
offer this charter in evidence, if your Honor please, in 
connection with the testimony of this witness. 


Mr. Butrers: Well, I object to it. 


The Court: I think I will sustain the objection. 
To which ruling of the court the defendant by its 
counsel then and there duly excepted. 


Mr. CHIPERFIELD: Now, you have marked that as Eix- 
hibit 2 for the purpose of identification. 


Q. You are operating under this charter of which you 
have spoken, marked Exhibit 2? A. Yes, sir. 


The works are located in the vicinity of Peru and La 
Salle, the coal mines. 


Mr. CHIPERFIELD: (). How many? 
Objection by the plaintiff. 
A. Four. 


Mr. CuHIPperFIELD: Q. Describe the location, and as 

you describe the location describe the designation of each. 

Objected to by the plaintiff; objection sustained; 
defendant excepts. 


I am familiar with the lands described in the plain- 
tiff’s declaration. JI know the lands we own. I have 
never seen the declaration. I don’t know what lands are 
included in the declaration. JI am familiar with the de- 
scription of the lands. 


With reference to the lands described in the declara- 
tion, | am familiar with those descriptions. J recognize 
the description of each one of them as you read them. 
We have no works located on any of these lands. We 
have no coal mines or shafts upon any of those lands. 


496 


497 


498 


499 


19 


We have entries and roadways underneath these lands; 
underneath the ground, we have. In the lands that you 
read the description of there are entries and roadways. 
We are working coal from some portions of these lands. 
We are working coal in the southwest quarter of Section 
23, a portion of it, and that portion of 21 of the north- 
east quarter of 21 east of the Illinois Central Railroad. 


We have removed portions of the coal but not in all 
of it. We have removed coal under the southeast and 
southwest quarters of 14; practically all of it except on 
the east edge. I cannot give you the entire amount there. 
A portion under the south half of 23; a small portion 
under the part of 21 east of the Illinois Central Rail- 
way, of the northeast quarter; that is all. The rest of 
the coalis within the land. The La Salle County Carbon 
Coal Company, the plaintiff in this case, has removed 
that coal. We have removed about 1,300 acres of coal. 


Mr. Cuiperrietp: @. In the description which I read 
to you in this declaration, and which you said you rec- 
ognized the land of which you had been in possession, 
how many acres are described? 

A. I heard you say this morning 900 to 1,000. 

From the lands of which a description has been read 
I should say we mined out in the south half of Section 
23 probably twenty-five acres. I should judge twenty 
five acres. And in that part of 21, the northeast quarter, 
east of the Illinois Central, I should say probably fifteen 
acres. 


(. Then of this nine or ten hundred acres, whichever 
it may transpire to be, you have taken out something like 
about forty acres altogether; is that all? A. Well, I 
would like to look at the map of the property before giv- 
ing that answer. 


D100 Mr. O’Conor: We have a map, Mr. Chiperfield, which 


o01 


O02 


003 


O04 


80 


shows the coal mined, but it also shows a good many 
other things. * * * For the purpose of answering 
this question I can let Mr. Hazen take that and he can 
describe to you just where that coal was taken from. 
(Map is handed to the witness. ) 


Mr. CuiperFigetp: Now, then, Mr. Hazen, so you may 
understand my question, when you are looking at the 
map, from the land that is involved in this suit, about 
how much coal has been taken and where has it been 
taken? Now, you may take all the time you want to an- 
swer that. I mean how many acres? 


A. I should say fifteen acres out of that piece. 


Out of the portion of the northeast quarter east of the 
Illinois River and north of the bayou; perhaps that would 
be the description. None of the coal has been removed 
on the balance of Section 21 across the river west. I 
don’t know that any of the coal has been removed from 
the lands on the bayou; between that and the river. On 
Section 21 about fifteen acres has been removed, north 
of the bayou. The thickness of the vein is three and a 
half feet. I should say fifteen acres has been removed 
out of the south half of Section 23. Out of the lands 
involved in this suit about thirty acres have been mined 
altogether; on 14, about 120 acres have been removed; 
no other coal has been removed from the lands in con- 
troversy in this suit. The map correctly portrays what 
work has been carried on in this land. The land which 
was described in Exhibits 4, 5, 6, 7, 8 and 9 were in the 
possession of the Illinois Valley Coal Company from ’84 
to 92. The La Salle County Carbon Coal Company did 
not own the stock of the Illinois Valley Coal Company. 

Q. Did the stockholders of the La Salle County Car- 
bon Coal Company also own the stock of the Illinois Val- 
ley Coal Company? A. Yes, sir. 


D059 


906 


Sl 
Mr. O’Conor: Objected to as immaterial. 
Objection sustained by the court; defendant excepts. 
Mr. CuIPerFieLp: I want to offer to prove that from 
84 to ’92 the stockholders of the La Salle County Carbon 
Coal Company were the owners of the stock of the IIli- 
nois Valley Coal Company, and that the management, 
operation and control of the Illinois Valley Coal Com- 
pany were the same as the management, operation and 
control of the La Salle County Carbon Coal Company. 
I think that is all. 
Objected to by the plaintiff as immaterial; objection 
sustained; defendant excepts. 


Mr. CureerFieLtp: I[ want to ask this question: 


. Were the officers of the Illinois Valley Coal Com- 
pany and the officers of the La Salle County Carbon 
Coal Company identical? 

Plaintiff objects; objection sustained; defendant ex- 
cepts. 

Mr. CHIPERFIELD: (). I want to ask you if you took the 
lands which are described in the deeds which I have men- 
tioned to you, the exhibits from 4 to 9, for any debt 
which was due from the Illinois Coal Company to the La 
Salle County Carbon Coal Company? 

Objected to by the plaintiff; objection sustained; de- 
fendant excepts. | 

The jury is withdrawn from the court room. 


Mr. CurperFiELpD: I want to offer to show that the La 
Salle County Carbon Coal Company took the lands de- 
seribed in the deeds, so far as the same pertain to this 
suit, for an indebtedness which the Illinois Valley Coal 
Company owed the La Salle County Carbon Coal Com- 
payn. 

Objection by the plaintiff; objection sustained; de- 
fendant excepts. 


007 


82 


Mr. CuHIPerFIELD: There are two or three matters on 
that proposition that can be disposed of while the jury 
is absent. : 


The Count: Very well. “ 


Mr. CHIPERFIELD: Q. Did the La Salle County Carbon 
Coal Company require for its purpose of mining the » 
surface of the lands which are described in the plain- 
tiff’s declaration, all of the surface of the lands which 
are described in the plaintiff’s declaration? 

Objected to by the plaintiff as not a pertinent in- 
quiry; objection sustained; defendant excepts. 


908-510 Argument upon the question of the materiality of 


oll 


the testimony offered. 
Mr. O’Conor: We object to it. 


The Court: I think I will sustain the objection. 
Defendant excepts. 


Mr. CHIPERFIELD: Q. I want to inquire how much of 
this land, or the surface of this land, is in fact oceupied 
for any purpose in connection with the operation of the 
mines of the La Salle County Carbon Coal Company by 
shafts, tipples or any other purpose whatsoever that is 
necessarily connected with such use? 


A. About twenty acres. 


@. What is done with the rest of the land? A. 
Farmed. 


Q. So, aside from some twenty acres of land, the La 
Salle Carbon Coal Company is and has been, since it ac- 
quired these lands, engaged in the business of farming? 
A. We farm the lands. 


Q. I say, since it has acquired these lands, that has 
been the use that has been made of it? A. Yes, sir. 


(The jury returns to the jury box.) 


The Illinois Valley Coal Company is not now in exist- 


o12 


513 


O14 


O15 


83 


ence. It has been consolidated in 1892 with the La Salle 
County Carbon Coal Company. I first learned of Ex- 
hibits 4, 5, 6, 7, 8 and 9 prior to 1884. I was connected 
with the Illinois Valley Coal Company as chief clerk. I 
worked for the Illinois Valley Coal Company from 1880 
to 1884. I afterwards worked for the Illinois Valley Coal 
Company as treasurer from ’84 to ’92. I was also con- 
nected with the La Salle County Carbon Coal Company 
at that time in the same position. 


I was treasurer of both companies. I was familar 
with the records of the Illinois Valley Coal Company. 
These deeds constituted a portion of the records of the 
Illinois Valley Coal Company. I was present when part 
of the negotiations and I saw the deeds handled there 
and handled them myself. I knew that Exhibit 9 was in 
the office at that time. I knew nothing about. I am mis- 
taken in saying I participated in the execution of these 
deeds. No, I think they were executed prior to ’84. I 
don’t know anything about the execution of any of these 
deeds. All I know is that I found them in the office of 
the Illinois Valley Coal Company. They did not continue 
there. They went to Chicago, to the general manager’s 
office. They went in 1884. They remained in the gen- 
eral manager’s office until last November, a year ago, 
November, 1911; the manager’s office of the La Salle 
County Carbon Coal Company or in the [llinois Trust 
and Savings Bank deposit; one or the other. I had ac- 
cess to the files of the general manager’s office in Chi- 
eago. These deeds were kept in his office until the last 
three or four years, and then were put over in the [lli- 
nois Trust and Savings Bank in the eustody of Mr. 
Wyatt. They were in the safety deposit box which the 
La Salle County Carbon Coal Company rented in the 
name of Mr. Wyatt. Mr. Wyatt was the general man- 
ager of the La Salle County Carbon Coal Company. He 


O16 


d19 


84 


was my predecessor. He died last November, a year ago. 
I succeeded to his duties at the same time. I got these 
deeds in my possession April of this year. Between ’92, 
down to the time I last saw these deeds, I had seen them 
several times; three or four times; I can’t give you the 
dates. Exhibit No. 3, deed from the Illinois Valley Coal 
Company to the La Salle County Carbon Coal Company, 
was made in 1884, March. I was not present at the ex- 
ecution of that deed and don’t know anything about it. 
I first saw the deed some time subsequent to 1892. The 
first time I could swear to it was last April. I have seen 
it several times since, but I can’t give the dates. 


(). Have you in your custody or possession any of the 
records of the Illinois Valley Coal Company? 
Objected to by the plaintiff; objection sustained; de- 
fendant excepts. 


Q. Do you know whether or not the premises which 
are described in Exhibit 3 were taken for a debt by the 
La Salle County Carbon Coal Company due from the 
Illinois Valley Coal Company? 

Objected to by the plaintiff; objection sustained; de- 
fendant excepts. 


The lands conveyed by the deed of the Illinois Valley 
Coal Company to the La Salle County Carbon Coal Com- 
pany—that is the part described in this declaration— 
that deed, as I remember, conveys the lands through for- 
mer deeds, reciting the parties to the transaction and 
the book in which they are filed. All of the lands em- 
braced in this suit there was conveyed by the deed from 
the [hnois Valley Coal Company to the La Salle County 
Carbon Coal Company, the land in Section 23, about 
thirty-five acres in 24, and seventy and 21/100 acres in 
23; all the property of the Illinois Valley Coal Company. 
There was a shaft embraced in that, and works. The 
shaft and works are now located on Section 23, southern 


o21 


O22 


023 


024 


O20 


85 


edge. They are used in connection with these lands at 
the present time. 


Court adjourns until 1 o’clock p. m., November 12, 


EOL. 


Cross-Examination of Howard S. Hazen (Continued). 


The officers of the La Salle Carbon Coal Company are 
Richard P. Joy, president; Henry T’. Sheldon, vice-presi- 
dent, and H. 8. Hazen, secretary and manager. The di- 
rectors are Joy, Sheldon, Quirk, Dennis, Hazen, and I 
think that is all. Mr. Quirk resides in Ipsilanti and the 
rest of them in Detroit, except myself, and I live in La 
Salle. The tracts of land which lie along the Illinois and 
Michigan Canal, being the tract furthest north and fur- 
thest east, that is involved in this suit, we have farmed 
part of it and we have a rock dump on another portion 
of it. It is from the Rockwell mine, the Rockwell shaft, 
that the dump is being taken. That is located on Lots 
1 and 2. It is located on an independent lock. We have 
farmed a part of that land. I can’t tell how much with- 
out seeing the map. We have rented it out. We claim to 
have owned it since 1883. I don’t know who we rented 
it to in ’83, in ’84, or in ’85, or in ’86. I don’t locate any 
year. I don’t know in ’88 or in ’89 or in ’90 or in 
ieee don't know in 792, in ’93, in 795, 1n “96, in ’97, in 
98, in 799. I don’t know in 1900, in 1901, in 1902, in 1903, 
in 1904, in 1905, in 1906, in 1907, in 1908, in 1910, in 
1911, in 1912; I don’t know. 

Q. How much did you get for the rental of that land 
for any of those years? 

Objected to by the plaintiff; objection sustained; de- 
fendant excepts. 


The rock dump on the land traversed by the right of 
way of the C., B. & Q. would cover about fifteen acres. 


526 


O27 


528 


86 


It is about twenty feet high. The land which lies prac- 
tically south of the tract which was first described and 
which is traversed by the C., B. & Q Railroad and which 
hes east of the Vermillion, being a part of the northeast 
of 23, has been farmed by tenants. 


@. Do you remember who have been the tenants of 
those lands for any time since 1892? 
Objected to by the plaintiff; objection sustained; de- 
fendant excepts. 


Charles Segart has farmed it this year. August La- 
vins farmed it for 1911. August Lavins farmed it in 
1910. He has farmed it for four years. Before that 
Thomas Bowers for two years; before that George Simp- 
son; I don’t know how long he farmed; a good many 
years; several years; I don’t know. 


Q. Do you know the rental which you got for the 

use of those premises during any of those years? 
Plaintiff objects; objection sustained; defendant ex- 
cepts. 

The land immediately west of the Illinois Central right 
of way and south of the river, being a part of the south- 
east quarter of Section 23, and a part of the southeast 
quarter of Section 22, has been farmed. The 106 acre 
tract south of the Illinois River, which is the southeast 
of 23, being almost directly west of the first piece de- 
scribed, has been farmed by Mike Charles this year and 
last year. For the years 1909 and 1910 Charley Shepp 
farmed it. For 1909 and for two or three years prior 
to that time Tom Bowers farmer it. I can’t go back any 
farther. The piece lying to the westward of the piece 
in 22 and 23, going straight west, and lying along the 
river and to the east of Huse’s Slough, having some- 
thing like 400 acres in it, being a part of Section 21; that 
part east of the Ilhnois River, of the northeast quarter, 


029 


030 


doL 


87 


was farmed for about three years, three or four years, 
by Dooley. Prior to that for about twenty-five years it 
was farmed by another Dooley, a brother to the first 
man mentioned. These two men have farmed it during 
the time we have owned it. The balance of the piece is 
farmed this year by William Brannen, a man by the 
name of Boers, and another by the name of Cosgrove. 
The same parties farmed it this year and the year be- 
fore. They have been there altogether three years. Be- 
fore that there was a multitude of people there farming 
the year before. I couldn’t tell you who they were. Five 
years ago Charles Segart and a man by the name of 
Guest farmed it. I have given you all the names I can 
think of. The same people, I think, farmed it in 1905. 
In 1908 Mrs. Waugh, and before that Mrs. Waugh. She 
had it three years. Nobody farmed it in 1902. Back as 
far as I know, Samuel Waugh, the husband of Mrs. 
Waugh, farmed that land. She succeeded him. 


Q. What rental did you obtain for those tracts which 

I have last described to you? A. Two-fifths of the crop. 

Objected to by the plaintiff; objection sustained; de- 
_fendant excepts 

Mr. CuHrIPerFIELD: Q. About how fast are you. mining 
the coal on this land? 

Objected to by the plaintiff; objection sustained; de-. 
fendant excepts 


There is timber around the edges of the stream. Some 
large cottonwoods and some willows. That is merely a 
fringe of timber along the edge of the stream. 

Mr. CurpeerFrieLD: @. Is there any of this land which 
rises high towards the bluffs? 

Objected to by the plaintiff; objection sustained; de- 
fendant excepts 


There is about thirty acres of this land which is not 


On 
CO 


8S 


bottom land. It lies in the southeast corner of 21. It 
has been pasture. 


(). Now, the land which is on the south side of the 
land between—on 22 or 23—this triangular shaped piece 
where you didn’t understand which piece I referred to, 
which by way of identifying it is west of the Lllinois 
Central, there is a road which runs from east to west 
there, isn’t there? A. Yes, sir. 


(). Does the land towards that road rise quite high? 
Objected to by the plaintiff; objection sustained; the 
defendant excepts. 


The land next to the road on the north side is used for 
pasture purposes. There is some small timber on that 
land, serub timber; oak and everything. Right to the 
east of the Illinois Central bridge, between that and the 
Little Vermillion, no part of that land has been used 
for a vegetable garden or the raising of millet. I believe 
there is a small patch there that has been used by some 
one for a garden patch. I don’t know anything about it. 
I don’t know if any millet was raised there this year. 
I believe there was none raised there this year. There 
was a vegetable garden there. It was not a tenant of 
ours. It was a squatter. 


The works of mine No. 1 extend out under 23 and up 
under 26. Twenty-three is involved in this suit. The 
map is a correct representation of the workings of the 
shaft at that time as far as they had extended into 23. 
The Cedar Point mine has nothing to do with this suit. 
Mine No. 5 is at Cedar Point. The Union mine is in the 
edge of Peru. The Union mine has to do with the work- 
ings upon lands involved in this suit; that part of the 
northeast quarter of 21 east of the Illinois River. 


89 


536 Re-direct Examination of the Witness Howard S. Hazen 


OT 


by Mr. Butters. 


Q. Mr. Hazen, one question. Who has paid the taxes 
that have been levied against this land during the times 
that you have covered by your testimony? 


Mr. CurperFretp: I object to it for the reason, if the 
court please, the payment of taxes cannot be shown in 
that manner. 


The Court: I think I will let him answer. 
The defendant excepts. 


A. I have paid the taxes on all the lands since 1890, 
as treasurer of the coal company. 


Re-cross Exanunation of the Witness Howard 8S. Hazen 
by Mr. Chiperfield. 


I have paid all of the taxes assessed against the prop- 
erty that I have been charged with. I have the tax re- 
eeipts. I don’t have them with me. I will produce them 
for your inspection if necessary. 


Mr. CHIPERFIELD: Well, let us then defer the further 
cross-examination until he returns with the tax receipts. 

The Court: Is there anything further? 

Mr. O’Conor: That is all. 

Mr. CurIPerFIELD: But I want it understood that it is 
with the understanding, your Honor, when the receipts 
come in there may be further cross-examination with 
reference to them. 

Mr. O’Conor: Well, we won’t produce them, your 
Honor, unless they want them. 

Mr. CHIPERFIELD: Yes, we want them. We want to 
examine with reference to them. 


The Court: Call your next witness. 


90 


540-558 Caption of depositions of Clarence O. Davis, Obe- 


008 


060 


O61 


062 


063 


O64 


diah Hicks, Rollin L. Reed, T. E. Marsh, Thos. J. Kelly, 
Homer R. Clark and F.. G. Blakeslee, taken in the above 
entitled cause on the 13th and 16th days of April, 1905, 
at the office of J. L. O’Donnell, Young Building, Joliet, 
Illinois, and stipulations with reference thereto. 


CLARENCE QO. Davis, a witness for the plaintiff, being 
sworn, testifies as follows: 


Direct Examination by Mr. Curran. 
(Deposition read by Mr. Butters.) 


My name is Clarence O. Davis. I am twenty-nine years 
old and live in Joliet, Illinois. Have lived there the last 
fifteen years; am a photographer. Have been engaged 
actively in that business about seven years. I went out 
with Mr. Gale seven years ago this month and went in 
for myself. It has been photography with me all my life 
ever since I was a kid; three or four years, anyway. AI- 
together probably ten years’ experience. I did viewing 
on the ditch when they dug the big ditch down through 
here. I took the negatives from which these photographs, 
Exhibits 2, 3, 4 and 5, were made. The negative for Ex- 
hibit 2 was made on March 2, 1905. I am acquainted with 
the stream in the State of Illinois known as the Des- 
plaines River, but not to any great extent. I have been 
at the Town of Lyons in the County of Cook in the State 
of Illinois. I have seen the masonry work that is called 
the ‘‘Water Diversion at Lyons.’’ I have been there. 
I was there last on March 2, 1905. I took a photograph 
of that on March 2. I focused the camera when the neg- 
ative was made. There was nobody present but myself 
when this was done. I took charge of the negative after 
the exposure was made. I brought it to Joliet. I kept 
it in our studio at Joliet. I developed it and it: was 


565 


067 


068 


569 


91 


printed under my direction. The proofs were mounted 
in my studio under my direction. Exhibit 2 is one of 
the prints and photographs made from the negative I 
have mentioned. I don’t really know what it was put 
there for. Well, I will have to change that. It has rela- 
tion; that is what it is in there for. In making Exhibit 
2 I photographed the spill-way. It is the Sanitary Dis- 
trict’s spill-way. Near the Town of Lyons adjacent to 
the spill-way. The camera stood about ten to twenty-five 
feet from the masonry at the time the photograph, Ex- 
hibit 2, was made. It was focused upon this spill-way. 
It was photographed to the best of my ability. To the 
best of my ability, Plaintiff’s Exhibit 2 is a correct pho- 
graph of the spill-way and water diversion at that place. 
I took the negative for Exhibit 3 on March 2, 1905. It 
was the Desplaines River between the spill-way and Ly- 
ons; probably about an eighth of a mile from the spill- 
way; about a mile or a mile and a quarter from Lyons. 


~ Tam acquainted with the locality of the controlling works 


070 


O71 


O12 


and Bear T'rap Dam at Lockport. I don’t know how 
far from the controlling works and Bear Trap Dam at 
Lockport Exhibit 3 was taken. J don’t know the dis- 
tance between here and Summit. It would be purely 
ouesswork as to the distance where Exhibit 3 was taken 
and Bear Trap Dam and the controlling works. Exhibit 
3 was taken above the point where Bear Trap Dam is 
located on the Desplaines River. I don’t know the di- 
rections there except that I was told. I never was there 
except that one time. The camera was located about 300 
feet from the bed of the stream of the Desplaines River. 
It was focused upon the Desplaines River. I made the 
exposure. T'o the best of my ability it was properly done. 
After the negative was made it remained in my charge. 
I took it to Joliet to the Savory studio. It has been in 
my charge from then until the present time. The nega- 


O73 


Or 
“< 
D 


od 


078 


fe 


tive was finished and the prints made from it under my 
direction. They were mounted and put in their present 
form under my direction. There was nothing done in 
the process of that work that was not properly done, ac- 
cording to my judgment and experience as a photog- 
rapher. Exhibit 3 is one of the photographs made by 
me and under my direction from that negative. I have 
been at the Bear Trap Dam and controlling works at 
Lockport; been there three times. The controlling works 
and Bear Trap Dam is about five miles from Joliet. I 
was last there February 19, 1905. At the time I took 
the photograph of the Bear Trap Dam and controlling 
works there was nobody with me but a helper to carry 
the camera that day. His name was James Hurley, I 
believe. 


When Plaintiff’s Exhibit 4 was taken the camera was 
located on the west bank of the drainage, focusing east. 
I mean the Sanitary District Canal stream. I should 
judge about 250 or 300 feet I foeused the camera. In 
my judgment and experience as a photographer, it was 
eorrectly done. I exposed the negative. I took charge 
of it. It has been in my charge ever since. It has been 
kept in the Savory studio, Joliet, Illinois. The negative 
was developed and prints were made under my direction. 
They were also mounted under my direction. It was 
foeused on the controlling works as a whole with the 
Bear Trap Dam as a center, because I tried to get one 
of these up there (pointing to an object in the picture) ; 
one of these flood gates. Water was running over the 
Bear Trap Dam. All of the apron of that dam was un- 
der water. It was not frozen; was running free. I took 
the photograph about 11 o0’clock in the forenoon. I made 
Plaintiff’s Exhibit 5. I am acquainted with the street 
on which the bridge is located from which that picture 
is taken. It is Jefferson street, Joliet. There is a bridge 


ov9 


080 


O81 


582 


083 


084 


93 


over the Desplaines River on Jefferson street. I have 
been acquainted with it ever since it was put in. The 
camera was pointed north at the time of the making of 
the photograph. The camera was situated on the north 
portion of the north sidewalk at the time of the taking 
of that photograph. There is a sidewalk on each side 
and a roadway in the middle. It was west of the center 
of the bridge, I should judge, about a dozen feet. It was 
Just a few feet from the north edge of the bridge; 
probably the middle of the walk. The walk is about 
eight or ten feet wide at that place. I am not acquainted 
with the artificial retaining walks, built along the Des- 
plaines River at that point, but I know there are such. 
I have seen them; not very frequently. They consist of 
stone masonry about ten or twelve feet high. I focused 
the camera when the photograph, Exhibit 5, was taken. 
I made the exposure and took the negative. I have been 
in charge of the negative from that time until the pres- 
ent time. It has been kept in the Savory studio, Joliet. 
The negative was developed, photograph printed and 
mounted under my directions. The work was properly 
done. I brought Exhibits 2, 3, 4 and 5 before the com- 
missioner. They are in the same condition now they were 
when completed, except the exhibit marks. The gallery 
where I do work is operated under the name of the Sa- 
vory studio. It is a sort of a trade mark. On the 2d of 
March, 1905, when Plaintiff’s Exhibits 2 and 3 were 
made, the condition of the weather was about freezing 
point or slightly above. The weather was sort of cloudy, 
too. At the time Plaintiff’s Exhibit 4 was taken, on the 
19th of February, 1905, it was below freezing point. It 
was deuced cold at that time. Thirty below zero. The 
mercury reached that point about Monday, the 13th of 
February. It maintained that for about a little over 
twenty-four hours, and then gradually came up. 


7 


585 


086 


087 


088 


o89 


94 


At the time Exhibit 4 was taken the water was frozen 
about and running water below the Bear Trap Dam. 
When Exhibit 4 was taken the Bear Trap Dam was run- 
ning water, running quite swiftly. From the 13th of Feb- 
ruary, 1905, down to the 26th of February, 1905, the tem- 
perature at Joliet was around freezing point and below 
freezing point most of the time. On the 26th of Febru- 
ary, 1905, the day I took Exhibit 5 from the Jefferson 
street bridge, it was just about freezing point. The sun 
was bright. No, there had been no breakup or thaw just 
about that time. 


At the time I took Exhibit 5 the Desplaines River was 
running water, with some ice coming down with the 
water. It was all open. The current was swift. Ex- 
hibit 5 was taken about noon. There was bright sun- 
shine that day. On that day I had normal vision. I saw 
the current of the Desplaines River. The current was 
quite swift. The Jefferson street bridge I mentioned is 
not the only bridge across the Desplaines River in the 
City of Joliet. Looking north from the Jefferson street 
bridge it is four blocks to another bridge. That bridge 


090 is called the Cass street bridge. That is the Cass street 


O91 


O92 


bridge shown in the field of that picture across the Des- 
plaines River. It is seven blocks from the Jefferson 
street bridge to the Jackson street bridge. The Jackson 
street bridge is north of the Cass street bridge. Ex- 
hibit 5 was taken of the Desplaines River, what used to 
be the Desplaines River, the bed of the Desplaines River. 
The parallel objects extending north and south towards 
the Cass street bridge from the right and left field of 
that photograph are stone walls; the same stone walls. 


Plaintiff offers in evidence Plaintiff’s Exhibits 2, 3, 4 
and 5. 
Objected to by defendant on the ground they are in- 
competent, irrelevant and immaterial; objection 
overruled; the defendant excepts. 


, 


95 


093 Cross-Examination. 

099 Exhibit 2 admitted in evidence without objection. 
Exhibit 10 admitted in evidence without objection. 

600 Exhibit 4 admitted in evidence without objection. 


Exhibit 5 admitted in evidence without objection. 


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Cross-Examimation of the Witness Clarence O. Davis by 
Mr. Quinn. 

(Deposition read by Mr. Chiperfield.) 

I developed the plate in every instance that Exhibits 
2, 3, 4 and 5 were made by the printer. They were all 
done under my supervision. I was there at the time. The 
printer would watch the frames and hand them to me 
when they were done or sufficiently printed. I was told 
to go to these points February 26, February 19 and 
March 2, 1905, by J. L. O’Donnell. He was the same J. L. 
O’Donnell in whose office we are now taking depositions. 
He is an attorney in the City of Joliet and the 
only one by that name in that city to my knowledge. They 
were taken for him. I selected the points at which they 
were to be taken. I was told to take these things from 
points of view which practically I selected myself, but it 
was done under their supervision. Mr. O’Donnell and 
I had a conversation as to the general places I was to go. 
For instance, he told me to take the spill-way. What I 
mean by that, I mean he didn’t tell me any definite place; 
just told me a general view and I went and made that of 
these different things. There were four specific cases. 
He told me to take the controlling works at Lockport. I 
selected which side I should take. He showed me a little 
print of the spill-way and told me to make something like 
this and then went down here to the bridge and he says, 
‘¢‘ Just take the canal north from the bridge,’’ and I went 
ahead and did it. I made four plates. No, I think I have 
six or seven. I will not say exact. You have the plates 
used on these oceasions. Yes, I did show Mr. O’Donnell 
two of them. Mr, O’Donnell determined which should be 
used for the purpose of making these pictures. I used 
an 11x14 camera. There was no doctoring done whatever 
of these pictures. For instance, ‘‘dodging’’ is retouch- 


6.L0 


612 


613 


102 


ing. I developed them. They went through our regular 
form of developing. I was just engaged in this work 
on two or three occasions, March 2d, February 19th and 
February 26th. I was employed by Mr. O’Donnell to do 
this work. I am not paid for it yet, but I look to Mr. 
O’Donnell for the money. 

(Signed) CrarEence O. Davis. 


_ The plaintiff then offered in evidence the deposition of 


OpepiaH Hicks: 


Direct Examination Read by Mr. O’Connor. 


My name is Obediah Hicks and I reside in Joliet; have 
lived there since 1862. My business in 1862 was building 
and repairing canal boats and dry dock. My dry dock 
was in Joliet. My firm operated canal boats in the Illi- 
nois and Michigan Canal and the Illinois River. Since I 
lived in Joliet my residence has been on the west side of 
the Desplaines River; have lived in Joliet all of the time 
from 1862 to 1900. For a period of about ten years be- 
fore the year 1900 I saw the Desplaines River every day. 
The condition of the river during any of those years in 
times of low water, particularly between Jefferson street 
in the City of Joliet and what is known as the Rock Island 
bridge south of Jefferson street, in the dryest times there 
was practically no water. Oh, there was some in the 
ponds, but no running water going over Maleolm’s dam 
down to the Grist Mill. I knew the dam that was former- 
ly on the Desplaines River near Jefferson street in the 
City of Joliet. It was dam number 1. In times of low 
water, during these years from 1862 until the Sanitary 
District water was turned into the river, the condition 
of the Jefferson street dam, prior to 1870 was dry very 
often. After that it was not dry much. I know where 
the race-way at Norton’s mill in Lockport is located. I 


614 


615 


616 


617 


103 


know the surroundings. From 1870 up to 1900 water es- 
eaped from the [llinois and Michigan Canal and flowed 
into the Desplaines River near Norton’s mill. When I 
say prior to 1870, that there was no water flowing over 
the Jefferson street dam, I think in every summer, four 
or five times during that period, probably I observed it. 
At other times of low water about six inches flowed over 
the dam. I was acquainted with the condition of the 
Desplaines River before 1900, north of Ninth street, north 
of the mill at Lockport. In times of low water it was dry. 
There was no running-~water in the river. There was an 
island in the river south of Jefferson street prior to the 
making of the Sanitary District improvements; two, in 
fact. On the north island near the Jefferson street bridge 
there was timber. I don’t think I ever waded across the 
river between Jefferson street and the Rock Island bridge. 
I was acquainted before 1900 with the Illinois River be- 
low Peru and La Salle. I observed the condition of the 
river there in times of low water on one occasion. It 
was ’65 or 766, I can’t remember which. It was at what 
we call Tree Top Bar, at that time, a shallow place in 
the river. The depth of the water in the Illinois River 
there on that occasion was ten or twelve inches; some 
places deeper and some shallower. I ascertained the 
depth by wading in and seeing teams draw through it, 
hauling boats up. The boats were towed from Tree Top 
Bar to Peru. I should think about five or six inches, 
somewhere about that. That was a flat bottom boat made 
for lightening. 


Cross-Examination of the Witness Obediah Hicks Read 
by Mr. Chiperfield. 


IT am seventy-five years and ten months old. I seen and 
observed the Desplaines River during the time I have 
lived in Joliet. Occasionally I have seen it very low. 


618 


619 


620 


104 


That was occasioned from the fact that no water was com- 
ing down the river from the Desplaines River. The 
Desplaines River rises somewhere in Wisconsin. I can’t 
tell you the location exactly. I can’t tell you how many 
square miles are contained in the water shed of the Des- 
plaines River. At the time I refer to it was an extremely 
dry season with no rainfall in or about the water shed. 
The Desplaines River at the time I speak of was very 
largely controlled, as to the volume or stage of water, 
by the amount of rain that fell upon the country above 
and upon its water shed. These times I have mentioned 
are the extreme low periods of water; they are the ex- 
ceptional cases. These times that I speak of occurred in 
an extremely hot and extremely dry portion of the year. 
There was some water coming down all the time. I have 
seen great floods of water coming down the Desplaines 
River in times of extreme rain, It overflowed the land 
sometimes half a mile wide. The general depth would be 
two or three feet. There would be places much deeper 
than that. That was the general depth. There is a stream 
known as Hickory Creek running through Joliet. That 
stream at times rises very rapidly. That stream empties 
into the Desplaines River. I have seen that stream pour- 
ing a great flood into the Desplaines River. Under those 
conditions, at the widest point, I have known the stream 
to be 500 feet wide, and of a depth of three feet. It has 
sometimes overflowed a large portion of the City of 
Joliet. Sometimes caused considerable damage and great 
inconvenience in the lower part of the city. In conjunc- 
tion with the Desplaines River it would ultimately and 
eventually reach the Illinois River. 


In 1870 the canal was deepened above Lockport, the 
Illinois and Michigan Canal. It brought a large quantity 
of water from Chicago. It affected the Desplaines River 
below Lockport, but not above, because there was an 


621 


622 


105 


extra amount of water wasted or allowed to come from 
the canal and go into the Desplaines River. That condi- 
tion has been prevailing ever since the City of Chicago 
has been discharging a considerable amount of water 
into the Illinois and Michigan Canal for the purpose of 
getting rid of their sewage, and that would be discharged 
into the Desplaines River. That condition has continued 
from 1870 until the Drainage District was formed. Since 
that time those periods of low water have not existed in 
the Desplaines River. They have not affected the river 
in any way. The discharge of the Illinois and Michigan 
Canal entered the Desplaines River, a portion of it at 
Lockport; the other portion at Joliet. The Jef- 
ferson street bridge is below Lockport. Malecolm’s 
dam is below Lockport. Norton’s, sumill -yisiidiat 
Lockport. Itis below the point of discharge. All of these 
days that I have mentioned with reference to the low 
water were changed by the operation of the Illinois and 
Michigan Canal. The sum and substance of the whole 
matter is that from 1862 to 1870, during dry seasons, the 
Desplaines River was low. During the wet seasons it 
would rise. The stage of the Desplaines River was regu- 
lated by the amount of rainfall within the water shed of 
the Desplaines River. Eighteen hundred and sixty-five 
is known as one of the years of extreme low water upon 
the Illinois River. I am not positive that I ever knew 
the Illinois River to be lower than it was in 1865. It was 
extreme low water. Tree T'op Bar was all under water, 
but it was a very small amount of water over it. The bar 
was probably half a mile wide. I suppose it is caused by 
some action, by water flowing in from the side. I think 
Bureau Creek comes in there somewhere in that vicinity. 
I should say it was close in the vicinity. I never was 
boating below Tree Top Bar. I have been at the towns, 
but not on the river. J can’t tell you the shape of Tree 


624 


626 


627 


106 


Top Bar. I have driven our team about a hundred feet 
from the bank of the river. Since the dams were con- 
structed at Henry in 1872 there has been plenty of water 
over it. The dam at Henry raised the depth of the water 
at the bar seven feet. There would be about eight feet, 
I would say, of water that would be due to the creation 
of the added depth; among other things of the building 
of the dam at Henry. I never personally observed an 
extreme flood stage upon the Illinois River. I never seen 
it at other times than I have mentioned. There was tim- 
ber on the north island below Jefferson street bridge. 
The first island was, say, thirty feet wide and fifty feet 
high. The highest elevation was six feet wide when the 
water was pretty low. The north point was the highest, 
I think. There were some deep holes around the island. 
The lowest condition that I have ever seen the highest 
point of the island would be about six feet above low 
water. The other island was about three-quarters of an 
acre. It was pretty nearly two blocks from the first is- 
land. It was oblong, rounded top, highest in the middle 
and sloped down at the sides. It was about 200 feet long 
and 100 feet wide in the widest place. It was about four 
feet above the lowest stage of water I have ever seen. 
That island has been removed. The second island was 
removed. These two islands were both removed from 
the river about five or six years ago. I saw them during 
the progress of the work. Before that time I saw them 
most every day, when I was crossing the river, I could see 
them. They were always out of water except in a very 
wet time they would be under water. Since 1870, when 
the Illinois and Michigan Canal was turned in, the water 
was raised generally. The first island would be more 
than three or four feet out of the water and the second 
island, call it a foot. 


629 


633 


634 


107 


Re-direct Examination of the Witness Obediah Hicks 
Read by Mr. Butters. 


The Illinois and Michigan Canal became separated 
from the river again at the Jefferson street dam. There 
was a lock there. The level of the Illinois and Michigan 
Canal between Joliet and Channahan was called the 
Channahan Level. Between 1870 to 1900, I have seen not 
over six inches on the top of the dam. At the present 
time there is a good deep stream running there all the 
time. It is about 200 feet wide. It is probably going 
about five miles an hour. The appearance of the water 
is rough. It makes a noise when it meets any little ob- 


2 struction. I have seen some floating ice, but no solid 


ice since 1890. 


Re-cross Examination of the Witness Obediah Hicks 
Read by Mr. Chiperfeld. 


When they took out these islands, that deepened the 
stream. Some of the water from the [limois and Michi- 
gan Canal didn’t get down as far as these islands. Some 
of it was diverted to feed the Channahan Level of the 
Illinois and Michigan Canal. If the canal was low and 
the Desplaines River was higher, some of the water 
would go in as a natural consequence. ‘There were gates 
to gauge the amount of water that was let in here above 
Jefferson street. I haven’t made any measurements to 
ascertain the current in the Desplaines River at the pres- 
ent time below Jefferson street. I am not an expert in 
gauging the current of a stream. I simply speak as an 
ordinary observer. I made no close or careful observa- 
tion for determining the speed of the current. I don’t 
want to be exact when I say that the current may be five 
or six miles an hour. Very easily there might be a latitude 
of several miles less per hour than I have made. It de- 


636 


637 


108 


pends on the height of the water. It comes more rapidly 
when there is a large body of water. When I speak of 
five or six miles an hour I refer to the time when the 
water is high; in spring, usually. It depends a great 
deal on the rain and the breaking of the ice. When all of 
these conditions are favorable there is a greater current 
and during times of draught the current becomes much 
less. At other times the current of the Desplaines River, 
below Jefferson street, goes as low as two or three miles 
an hour. There is very little difference in the width of 
the stream, because the walls are almost perpendicular. 
The width would be about the same. After the Illinois 
and Michigan Canal had added this amount of water into 
the Desplaines River, I have never seen it frozen across 
below Jefferson street. Above Jefferson street there 
would be floating ice in the stream. That continued after 
the adding of this water by the Illinois and Michigan 
Canal. It made quite a rapid current and within that cur- 
rent the ice would not form. I think I have seen a skim 
of ice across the upper basin. It would be a very thin 
coating of ice and the running water would speedily break 
it up. 


Re-re-direct Examination of the Witness Obediah Hicks 
Read by Mr. Butters. 


I remember when the river was offensive here in Joliet 
before 1893 or 794. There was some ice on the basin 
every winter as to being frozen above Jefferson street 
dam. It would be ice that would be formed for a very 
short time and the rapidity of the current would soon 
break it up. During the last five or six years there has 
not been any offensive odor, not like there has been. 


(Signed) Osrpian Hicks. 


638 


639 


640 


109 


Deposition of Rotuin L. Reep, offered in evidence by the 
plaintiff : 


Rouur L. Reep: 


Direct Examination Read by Mr. Butters. 


My name is Rollin L. Reed and I reside in Joliet. I 
live on the east side of the city. 


I have lived in Will County since ’44; have been in 
the City of Joliet twenty-two or twenty-five years; have 
not been in a regular business during that time in Joliet. 
I was connected with the hardware business and real es- 
tate business. Since 744 I have lived one year in Joliet 
and for seventeen or eighteen years a mile west of Joliet, 
on what was then known as the Troy road. I have been 
familiar with the Desplaines River ever since I ean re- 
member. I remember when the Jefferson street dam was 
taken out and the improvement made in the river here 
some years ago. At that time I paid considerable atten- 
tion to it. I never studied engineering as a profession. 
I have never practiced surveying or engineering. I ob- 
served the Desplaines River in the City of Joliet in dry 
seasons before the Sanitary District made their improve- 
ments. I observed it at different points. South of Jef- 
ferson street I seen it without any water except in pools, 
and I have seen it with quite large amounts. In dry 
times, before this Jefferson street dam was removed, I 
have seen it without water there repeatedly in dry times. 
I am acquainted with the Desplaines River above Lock- 
port where it overflows at Norton’s mill. I have ob- 
served it there at times of low water and in dry seasons. 
I have seen it when there was no water running. I know 
where the station and tracks of the Santa Fe Railroad 
are in Lemont. The Desplaines River came a short dis- 
tance from that point originally. The bed of the river 


641 


643 


644 


645 


646 


110 


was plainly visible from the tracks. I have observed the 
condition of the river there in thé summer time, oppo- 
site Lemont. It was bare of water except in small pools. 
Opposite Lemont was rock, broken stone, presumed to 
be sod of rock below. From Lemont to Joliet, by the 
river, it is about sixteen or seventeen miles. By direct 
route, about fourteen miles. From Lemont to Joliet, in 
a state of nature, a great deal of it was a shallow chan- 
nel. When the waters rose they spread out over the val- 
ley very considerably. I recognize the stream purport- 
ing to be shown in Exhibit 5. Prior to the Sanitary Dis- 
trict work or change in the river at Joliet there was a 
livery stable on the east bank of the river. The bank 
was a loose, rock bank, laid up; part of it was a natural 
bank. There was a warehouse there. These buildings 
were taken away except one, the building standing at Jef- 
ferson street now. That is not shown in this picture. 


The present channel through Joliet is shown in Ex- 
hibit 5 as approximately 250 feet wide; about 200 feet. I 
frequently passed over this and other bridges in Joliet. 
In this 200 foot channel the water has always been flow- 
ing. Below Jefferson street it is more rapid than between 
Jefferson street and Cass. Below Cass, I should say, 
four miles an hour, and below Jefferson from four to six 
miles an hour. The east bank is walled by loose stone em- 
bankment from Jefferson street. The bank extends down 
the river just above the mouth of Hickory Creek, be- 
tween half and three-quarters of a mile. As it goes south, 
it is lower. J don’t know its exact height. There were 
no embankments or levees there before the change. There 
were a number of people living along there. Before the 
Jefferson street dam was taken out, I have skated on the 
river many times. I have observed it frozen different 
winters. I have seen it frozen down to the crest of the 
dam. I don’t know how many, but a number of winters. 


647 


648 


650 


651 


Lil 


The offensive odor of the stream called my attention to 
it. I know the Ilinois and Michigan Canal about where it 
enters the basin at Joliet; just above the dam, or at the 
upper dam, what is known as the upper dam here, the — 
north dam. The Illinois and Michigan Canal again leaves 
the basin just above Jefferson street. It was supplied 
with water between Jefferson street and the lock above it 
through gates. The water supply was taken from the 
basin. Between 1870 and the taking out of this dam, I 
observed the condition of the water in the Illinois and 
Michigan Canal several miles south; five miles south of 
Jefferson street. The stage of the water was normal. I 
have never seen the present channel of the Desplaines 
River through the City of Joliet frozen. There is no rea- 
son why it doesn’t freeze, except the current. I have 
seen it frequently since the water was turned into the 
channel at Joliet, the last five years, at various points. I 
may have seen parts of it frozen during that time. Be- 
tween Cass street and the Rock Island bridge I have seen 
only small parts of it along the border; never seen it 
frozen over any number of feet from the bank. I don’t 
think I saw this channel in Joliet during the coldest 
weather of February, 1905. I have seen the river in the 
past five years in cold weather, during different winters. 


It is three blocks from Jefferson street to this Cass 
street bridge shown on Exhibit 5. This Cass street is 
north from Jefferson street. Jefferson street bridge is 
next north of Cass street. Jackson street is two blocks 
north of Cass street on the west side and three on the 
east side. The walls of this channel shown in Exhibit 5 
between Jackson street and Jefferson street are composed 
of stone, cement and sand. These walls were put in at 
the time of the construction of the Sanitary District 
channel. At the time of the change in the channel there 
was a dam constructed about Jefferson street. Part of 


652 


695 


654 


112 
it is shown in Exhibit 5. The west end of the raceway 
runs under the Jackson street bridge. There is a water 
plant north of Jackson street. It extends about 300 feet 
north of the street. I think that water power plant is 
more than 300 feet; 450 feet, I believe. I have visited the 
controlling works since the water was turned into the 
channel. I have seen what is known as Bear Trap dam 
at Lockport. I have seen the Desplaines River, in a gen- 
eral way, between the controlling works and the mouth 
of the Desplaines River, where it empties into the Ill- 
nois, in many different places. The water that is not 
taken by the canal to maintain the Channahan Level goes 
through this channel in Joliet and through the Desplaines 
River down into the Illinois River. The L[llinois and 
Michigan Canal still enters the basin in Joliet, coming 
from the north, and it is taken out in Joliet from the 
Desplaines River, except what water is taken into the 
Illinois and Michigan Canal at Joliet, all of the water 
going over the Bear Trap dam passes down the Des- 
plaines River. The Illinois and Michigan Canal runs 
against the retaining wall in the city. The Illinois and 
Michigan Canal between Cass street and McDonough 
street is about seventy-five to ninety feet, I think. The 
Illinois and Michigan Canal frequently is kept full of 
water in the winter season. That is, part of it; not all of 
it. Some levels are drawn out; others are retained. The 
lever above here, between here and Lockport, was drawn 
last winter. J should say the height of these retaining 
walls in the channel between Jefferson street and Cass 
street was from twelve to sixteen feet. There was con- 
siderable excavation at the place between Jackson and 
McDonough street, in the change of the river; and from 
Jackson street north, taking the entire distance, it va- 
ried from one to five feet. Silt and rock were taken out 
of the channel. This levee or embankment from Jeffer- 


609 


113 


son street on the east bank of the river to Hickory Creek 
was constructed at the same time the other work was 
done. The channel of the Desplaines River was widened 
in the City of Joliet between Jackson and McDonough 
streets; I don’t know how much. From the Rock Island 
Bridge south from Jefferson street, it is about three 
blocks. The first street south of Jefferson street would 


) be Washington, then Marion and then Lafayette. From 


the Rock Island bridge to McDonough is about five blocks. 
There is a wagon bridge at McDonough street. I re- 
member when the present channel received the water 
from the Drainage Canal. It was about five years ago. 
Since that time I have passed over it from six to eight 


7 times a week. There was always water flowing. <As to 


the current, it was always rapid. These concrete walls 
were all done before the water was turned in. 


The Court: Well, you will read the cross-examination 
of that deposition. 

Mr. Curperrietp: I think, if your Honor please, we 
may perhaps be able to state some of the objections to 
these deeds. However, whatever the court would prefer 
to do, whether we do that now or later or go ahead with 
the depositions 





The Court: I haven’t any choice in the matter. 

Mr, CurperFietp: All right. | 

Mr. O’Conor: You want the jury here? 

Mr. CureerrieLp: The jury won’t be interested in it. 


It will take a few minutes. Perhaps they would prefer to 
go to their jury room and take it easy. 

The Court: Well, you may retire to the jury room, 
gentlemen, for a few minutes. 

(Whereupon the jury was withdrawn and the follow- 
ing proceedings were had in their absence :) 


660 


661 


114 


Mr. CuiperrieLp: Where are the Illinois Reports, your 
Honor? I would like to have the 63d, 129, 181, 39, 235. 


Mr. O’Conor: I would like the 69, 87 and 104. 


Mr. CuHiprerFigeLtp: J want to state this objection to 
each of these deeds, and I want it repeated as to each 
Tixhibit.1, 3, 4, 5, 6,7, 8:and_ 9. 

We object to the introduction of this Exhibit 1 because 
no proper foundation has been laid for its introduction, 
because, first, the grantors therein are not shown to pos- 
sess the requisite qualifications and authority to execute 
said deeds. 


Mr. Burrers: Which deed is that? 
Mr. CutreerFieLD: Each deed. 
Mr. Butrrers: Oh, each deed. 


Mr. Curperrietp: It is a general objection I am stat- 
ing; then I will take it up separately. 


Because the certificate of acknowledgment appended 
thereto 1s not in due form of law or certified to by any 
person recognized by law as possessing authority for 
such purpose. 


Third. Because the description contained in the deed 
does not cover the premises described in the declaration. 


Fourth. Because the description contained in said deed 
covers other and different premises than those involved 
in this suit. 


Fifth. Because the premises described in the declara- 
tion are not the same premises purported to be embraced 
in the deeds offered. . 

Sixth. Because the proof offered tends to create a 
variance between the allegations of the declaration and 
the deed offered. 

Because the declaration alleges a fee simple title with- 
out any exception, while the deed offered in evidence re- 


662 


115 


serves to others than the grantee certain estates as ap- 
pears by an inspection of said deed, and, therefore, said 
deed does not tend to prove an estate in fee simple in 
the plaintiff in this case. 


Because said deed does not purport to be acknowledged 
in conformity with the law of the state wherein said 
acknowledgment was taken, because the person signing 
the deed as the grantor does not appear to have had au- 
thority to execute the said deed of conveyance. 


Because the said deed is incompetent, irrelevant and 
immaterial, because no proper foundation has been laid 
for its introduction, because it does not tend to prove any 
of the issues in this case. 


We object to the introduction of this Exhibit 3 because 
no proper foundation has been laid for its introduction, 
because, first, the grantors therein are not shown to pos- 
sess the requisite qualifications and authority to execute 
said deeds. 


Because the certificate of acknowledgment appended 
thereto is not in due form of law or certified to by any 
person recognized by law as possessing authority for 
such purpose. 


Third. Because the deseription contained in the deed 
does not cover the premises described in the declaration. 


Fourth. Because the description contained in said deed 
covers other and different premises than those involved 
in this suit. 


Fifth. Because the premises described in the declara- 
tion are not the same premises purported to be embraced 
in the deeds offered. 


Siath. Because the proof offered tends to create a 
variance between the allegations of the declaration and 
the deed offered. 


663 


116 


Because the declaration alleges a fee simple title with- 
out any exception, while the deed offered in evidence re- 
serves to others than the grantee certain estates, as ap- 
pears by an inspection of said deed, and, therefore, said 
deed does not tend to prove an estate in fee simple in the 
plaintiff in this case. 


Because said deed does not purport to be acknowledged 
in conformity with the law of the state wherein said ac- 
knowledgment was taken, because the person signing the 
deed as the grantor does not appear to have had author- 
ity to execute the said deed of conveyance. 


Beeause the said deed is incompetent, irrelevant and 
immaterial, because no proper foundation has been laid 
for its introduction, because it does not tend to prove any 
of the issues in this case. 


We object to the introduction of this Exhibit 4 because 
no proper foundation has been laid for its introduction, 
because, first, the grantors therein are not shown to pos- 
sess the requisite qualifications and authority to execute 
said deeds. 


Because the certificate of acknowledgment appended 
thereto is not in due form of law or certified to by any 
persons recognized by law as possessing authority for - 
such purpose. 


Third. Because the description contained in the deed 
does not cover the premises described in the declaration. 

Fourth. Because the description contained in said deed 
covers other and different premises than those involved 
in this suit. 

Fifth. Beeause the premises described in the declara- 
tion are not the same premises purported to be embraced 
in the deeds offered. 


Sixth. Because the proof offered tends to create a va- 


664 


665 


117 


riance between the allegations of the declaration and the 
deed offered. 


Because the declaration alleges a fee simple title with- 
out any exception, while the deed offered in evidence re- 
serves to others than the grantee certain estates, as ap- 
pears by an inspection of said deed, and, therefore, said 
deed does not tend to prove an estate in fee simple in the 
plaintiff in this case. 


Because said deed does not purport to be acknowledged 
in conformity with the law of said wherein said acknowl- 
edgment was taken, because the person signing the deed 
as the grantor does not appear to have had authority 
to execute the said deed of conveyance. 


Because the said deed is incompetent, irrelevant and 
immaterial, because no proper foundation has been laid 
for its introduction, because it does not tend to prove any 
of the issues in this case. 


We object to the introduction of this Exhibit 5 because 
no proper foundation has been laid for its introduction, 
because, first, the grantors therem are not shown to pos- 
sess the requisite qualifications and authority to execute 
said deeds. 


Because the certificate of acknowledgment appended 
thereto is not in due form of law or certified to by any 
person recognized by law as possessing authority for 
such purpose. 

Third. Because the description contained in the deed 
does not cover the premises described in the declaration. 


Fourth. Because the description contained in said deed 
covers other and different premises than those involved 
in this suit. 

Fifth. Because the premises described in the declara- 
tion are not the same premises purported to be embraced 
in the deeds offered. 


606 


118 


Sixth. Because the proof offered tends to create a 
variance between the allegations of the declaration and 
the deed offered. 


Because the declaration alleges a fee simple title with- 
out any exception, while the deed offered in evidence re- 
serves to others than the grantee certain estates as ap- 
pears by an inspection of said deed, and, therefore, said 
deed does not tend to prove an estate in fee simple in the 
plaintiff in this case. 


Because said deed does not purport to be acknowledged 
in conformity with the law of the state wherein said ac- 
knowledgment was taken, because the person signing the 
deed as the grantor does not appear to have had author- 
ity to execute the said deed of conveyance. 


Because the said deed is incompetent, irrelevant and 
immaterial, because no proper foundation has been laid 
for its introduction, because it does not tend to prove any 
of the issues in this case. 


We object to the introduction of this exhibit 6 because 
no proper foundation has been laid for its introduction, 
because, first, the grantors therein are not shown to pos- 
sess the requisite qualifications and authority to execute 
said deeds. 


Because the certificate of acknowledgment appended 
thereto is not in due form of law or certified to by any 
person recognized as possessing authority for such pur- 
pose. 

Third. Because the description contained in the deed 
does not cover the premises described in the declaration. 

Fourth. Because the description contained in said deed 
covers other and different premises than those involved. 

Fifth. Because the premises described in the declara- 


tion are not the same premises purported to be embracea 
in the deeds offered. 


668 


119 


Siath. Because the proof offered tends to create a va- 
riance between the allegations of the declaration and the 


deed offered. 


Because the declaration alleges a fee simple title with- 
out any exception, while the deed offered in evidence re- 
serves to others than the grantee certain estates as ap- 
pears by an inspection of said deed, and, therefore, said 
deed does not tend to prove an estate in fee simple in the 
plaintiff in this case. 


Because said deed does not purport to be acknowledged 
in conformity with the law of the state wherein said ac- 
knowledgment was taken, because the person signing the 
deed as the grantor does not appear to have had author- 
ity to execute the said deed of conveyance. 


Because the said deed is incompetent, irrelevant and 
immaterial, because no proper foundation has been laid 
for its introduction, because it does not intend to prove 
any of the issues in this case. 


We object to the introduction of this Exhibit 7 because 
no proper foundation has been laid for its introduction, 
because, first, the grantors therein are not shown to pos- 
sess the requisite qualifications and authority to execute 
said deeds. 

Because the certificate of acknowledgment appended 
thereto is not in due form of law or certified to by any 
person recognized by law as possessing authority for 


such purpose. 


Third. Because the description contained in the deed 
does not cover the premises described in the declaration. 


Fourth. Because the description contained in said deed 
eovers other and different premises than those involved 
in this suit. - 


Fifth. Because the premises described in the declara.- 


669 


120 


tion are not the same premises purported to be embraced 
in the deeds offered. 


Sixth. Because the proof offered tends to create a va- 
riance between the allegations of the declaration and the 
deed offered. 


Because the declaration alleges a fee simple title with- 
out any exception, while the deed offered in evidence re- 
serves to others than the grantee certain estates, as ap- 
pears by an inspection of said deed, and, therefore, said 
deed does not tend to prove an estate in fee simple in the 
plaintiff in this case. 


Because said deed does not purport to be acknowledged 
in conformity with the law of the state wherein said ac- 
knowledgment was taken, because the person signing the 
deed as the grantor does not appear to have had author- 
ity to execute the said deed of conveyance. 


Because the said deed is incompetent, irrelevant and 
immaterial, because no proper foundation has been laid 
for its introduction, because it does not tend to prove any 
of the issues in this case. 


We object to the introduction of this Exhibit 8 because 
no proper foundation has been laid for its introduction, 
because, first, the grantors therein are not shown to pos- 
sess the requisite qualifications and authority to execute 
said deeds. 


Because the certificate of acknowledgment appended 
thereto is not in due form of law or certified to by any 
person recognized by law as possessing authority for 
such purpose. 

Third. Because the description contained in the deed 
does not cover the premises described in the declaration. 

Fourth. Because the description contained in said deed 
eovers other and different premises than those involved 
in this suit. 


670 


671 


121 


Fifth. Because the premises described in the declara- 
tion are not the same premises purported to be embraced 
in the deeds offered. 


Siath. Beeause the proof offered tends to create a va- 
riance between the allegations of the declaration and the 
deed offered. 


Because the declaration alleges a fee simple title with- 
out any exception, while the deed offered in evidence re- 
serves to others than the grantee certain estates, as ap- 
pears by an inspection of said deed, and, therefore, said 
deed does not tend to prove an estate in fee simple in the 
plaintiff in this case. 


Because said deed does not purport to be acknowledged 
in conformity with the law of the state wherein said ac- 
knowledgment was taken, because the person signing the 
deed as the grantor does not appear to have had author- 
ity to execute the said deed of conveyance. 


Because the said deed is incompetent, irrelevant and 
immaterial, because no proper foundation has been laid 
for its introduction, because it does not tend to prove any 
of the issues in this case. 


We object to the introduction of this Exhibit 9 because 
no proper foundation has been laid for its introduction, 
because, first, the grantors therein are not shown to pos- 
sess the requisite qualifications and authority to execute 
said deed. 


Because the certificate of acknowledgment appended 
thereto is not in due form of law or certified to by any 
person recognized by law as possessing authority for such 
purpose. 

Third. Beeause the description contained in the deed 
does not cover the premises described in the said declara- 
tion. 


Fourth. Because the description contained in said deed 


122 


covers other and different premises than those involved 
in this suit. 


Fifth. Because the premises described in the declara- 
tion are not the same premises purported to be embraced 
in the deeds offered. 


Sixth. Because the proof offered tends to create a va- 
riance between the allegations of the declaration and the 
deed offered. 


Because the declaration alleges a fee simple title with- 
out any exception, while the deed offered in evidence re- 
serves to others than the grantee certain estates, as ap- 
pears by an inspection of said deed, and, therefore, said 
deed does not tend to prove an estate in fee simple in the 
plaintiff in this case. 


Because said deed does not purport to be acknowledged 
in conformity with the law of the state wherein said ac- 
knowledgment was taken, because the person signing the 
deed as the grantor does not appear to have had author- 
ity to execute the said deed of conveyance. 


Because the said deed is incompetent, irrelevant and 
immaterial, because no proper foundation has been laid 
for its introduction, because it does not tend to prove any 
of the issues in this case. 


Mr. CuiprerFieLpD: Now, with reference to these deeds, 
and there are eight of them, I don’t care to urge objection 
to the execution of these deeds as are, at the date of the 
offer, more than thirty years of age, with the exception 
of Exhibits 1 and 3. But, aside from the simple fact of 
conceding that ancient deeds of more than thirty years 
at the time they are offered in evidence prove themselves 
when attended by circumstances which show a fair pre- 
sumption that they came from proper authority anda 
proper custodian, I want to rely in every case on each 
and every objection which I have made, The only point 


675 


123 


which I waive is, as I think the court plainly understands, 
I don’t want to waste any time raising questions as to the 
execution of deeds that are ancient, more than thirty 
years of age, although the other defects contained in the 
deeds I want to reserve the right to point out, but such 
deeds without dispute, by the decision of our courts and 
the court of many states, prove themselves. I will take 
up these deeds in the order that they are named and ad- 
vance my objection to them. 


Now, Exhibit No. 1 purports to be made by Henry L. 
Young, James H. Young and Mason Young, as trustees 
under the last will and testament of Henry Young, de- 
ceased, of the city, county and state of New York, party 
of the first part, and it is signed by Henry L. Young, 
James H. Young, Mason Young, with the word Trustee 
appearing after each name. 


It is acknowledged before a notary public in the State 
of New York. And there is no certificate of conformity 
attached to the deed. 


Now, it is the law well settled that where a deed is 
executed in a representative capacity that there must be 
more authority than simply the fact of the deed being 
made. The jurisdictional questions have got to appear. 
And the power and the authority of the grantors have to 
appear. It is not sufficient that they should merely come 
in and say we are the trustees of a last will and testament 
of a certain person without the production of last will 
and testament, without production of their authority to 
make and execute this deed, either from the terms of the 
will itself or from the allegations of some proper court 
proceedings having jurisdiction both of the subject mat- 
ter and of the person. 


The court has passed upon this in the case of Fell vs. 
Young, 63 Ill. 106. ! 


674 


Or 


124 


In this case a deed was introduced in evidence pur- 
porting to have been executed by one William Dunley, 
as administrator of James MeGoosh, which included the 
premises in question in that section. MceGoosh was the 
patentee from the United States. 


The defendant objected to the introduction of this deed 
on the ground, first, that no authority in the administra- 
tor to execute it was shown; second, because it was not 
properly acknowledged, and, third, because it did not 
conform to the statute. 


These objections were overruled and exceptions taken. 
Whereupon the plaintiff offered in evidence a decree of 
the McLean Circuit Court, purporting to have been en- 
tered at the April term, 1835, of that court, on the peti- 
tion of William Dunley, administrator of James Me- 
Goosh, deceased to sell the land of his intestate to pay 
his debts. 


The defendant objected to the introduction of this evi- 
dence and the court sustained the objection. 


The case was put to the jury upon the naked deed of 
the administrator, which does not show on its face any 
authority to the administrator to execute it. 


The deed recites the order of the court directing a sale 
of decedent’s land, in which there is no recital, and it does 
not appear that the notice required by law, or any notice 
whatever, was given to the administrator of the time and 
place of presenting the petition, or that the parties in- 
terested in the land had any notice of the proceedings to 
divest them of their title. Every person dying is pre- 
sumed to leave heirs capable of inheritance, and before a 
decree can pass against them to divest them of their title 
to decedent’s property, the notice required by law must 
be given them. In the absence of notice, the court will 
have no jurisdiction of their persons. 


676 


125 


The law in force at the time this petition was filed, 
required the administrator, who desired an order to sell 
the land of his intestate to pay debts, to give at least 
thirty days’ notice of the time and place of presenting 
such petition, by serving a written notice of the same, to- 
gether with a copy of the account and petition on each 
of the heirs or their guardians or devisees of the testator 
or intestate or by publishing a notice in the nearest news- 
paper, ete. 


Now I am not going to read all of it. 


‘‘But it is urged, if the acknowledgment was not in 
conformity——’’ 


They raised the question of acknowledgment, that the 
acknowledgment was not in conformity in that it did not 
state that the grantor was personally known. 


‘‘But, it is urged, if the acknowledgment was not in 
conformity to the statute, the deed was properly admit- 
ted as an ancient deed. So far as the fact of the execu- 
tion of the deed is involved, this point is well taken, and 
was it a deed from a party in his own right to another 
party, it would prevail where possession had gone with 
the deed. But this is the deed of one acting in a fidu- 
elary character and from his position, having no power 
in and of himself to sell and convey the land of his in- 
testate. That this is an ancient deed, being more than 
thirty years old, it cannot be denied, but we do not un- 
derstand that the doctrine of the admissibility of such a 
deed in evidence, without some proof of its connection or 
of its acknowledgment in the mode required by law, to 
20 so far as to dispense with proof of the authority of 
the party to make the deed. Prima facie this administra- 
tor had no power to make this deed, and until such au- 
thority is shown, and by competent proof, the deed can 
convey nothing, and is not admissible in evidence as a 
muniment of title though it is thirty years old. 


677 


678 


126 


‘‘The doctrine that no proof of the execution of a deed 
thirty years old is required, springs from the fact that 
originally, by the common law and by the statute of most 
of the states, one or more witnesses were required to 
attest its execution, by whom its execution should be 
proved. After the lapse of thirty years the presumption 
obtains that the attesting witnesses are all dead. But no 
presumption arises from lapse of time that the party 
executing the deed has the power to convey the land. 


‘¢All that is shown in the case is the deed of an ad- 
ministrator purporting to convey the land of his intes- 
tate, reciting therein an order of court which does not 
show that the court has jurisdiction to grant the order, 
nor is any order of the court shown. 


‘‘Tt is well settled if a deed purports to have been exe- 
cuted under a power, and is sought to be used in evidence, 
the power must be shown. 


‘‘So as to deeds executed by executors or administra- 
tors under an order or decree of court. And this power, 
as the court has said, in the cases above cited, must ap- 
pear on the face of the decree. Its jurisdiction to grant 
the order or decree must be shown on the face of the 
proceedings. 


‘This is the only point we have deemed it necessary 
now to consider, and we are of the opinion, as no decree 
of court having jurisdiction to grant the order of sale has 
been shown, the deed of the administrator should not have 
been admitted in evidence.’’ 


IT want to call attention to the 181st Illinois on page 
039. This was the ease of Reuter vs. Stuckart, where a 
deed was purported to have been executed by an attor- 
ney in fact. The deed was more than thirty years old. 


Now, the court refers to this case of Fell vs. Young 
and its says: 


679 


127 


‘‘Counsel refer to the case of Fell vs. Young, 63d II. 
106, as being opposed to the view above announced. In 
that case an ancient deed was produced, which was made 
by an administrator, and failed to show upon its face 
that the court, which ordered the sale, had jurisdiction 
over the parties to be affected by it. The rule there an- 
nounced is correct, as to the power there apparent upon 
the face of the deed was a public and statutory and not 
a private power. Such cases as that of Fell vs. Young 
involve the question of jurisdiction of the tribunal order- 
ing the deed to be made, and in such cases the power 
should be shown. But, in a case like the one at bar, the 
proof of the power is only one of the facts to make out 
a due execution of the deed, and the due execution of the 
deed is presumed in the case of an ancient deed in view 
of the great length of time which has elapsed and in view 
of the possession taken, and other acts done under the 
deed.”’ 


Now, that presumption could not arise in this case un- 
der any circumstances, for this deed is not yet thirty 
years old, has not the thirty years to give it sanctity. 


Now, here is a deed which purports to be made by cer- 
tain people as trustees under the last will and testament. 
Whether the man is dead, what the provision of his will 
and testament was, whether or not there was any power 
or authority in them in any shape, way or manner, to 
execute this deed is absolutely, wholly and entirely silent. 


Here in the 205 Illinois, in the case of Felix vs. Cald- 
well, on page 159, they quote approvingly the case of 
Fell vs. Young and it also quotes approvingly the doc- 
trine sustained. I don’t mean that it 1s quoted approv- 
ingly in each of these cases, but the doctrine is sustained 
in Jones on Evidence, Section 312, first Greenleaf on Evi- 
dence, 141—— 


Mr. Burrers: Give me that again, 


680 


128 


Mr. Curperrietp: Second Jones on Evidence, Section 
312; Ist Greenleaf on Evidence, Section 141; Bradley vs. 
Lighteap, 201 Ill. 511; 2d Phillips on Evidence, note 429, 
page 396; Meegan vs. Boyle, 60 U.S. 130, and also—well, 
I think that is a sufficient citation of authority on that 
proposition. 

Now, here is the situation. This deed comes into this 
court. We don’t need to consider the doctrine of ancient 
deed, because that don’t arise. It is not thirty years old 
and it purports to be executed by some foreign trustees 
who live in the City of New York. Their authority does 
not appear in any way, shape or manner and involves 
and embraces several of the tracts of ground described 
in this petition. 

Now, when you take the deed itself it should not be per- 
mitted in evidence, because it tends to create a variance 
between the allegations of the declaration as to owner- 
ship and the proof which is offered. For instance, now, 
when you come to the east half of Section 14, which they 
describe that they own in fee simple, absolute- 
ly fee simple, the deed recites as follows: ‘‘AIl of the 
east half of section 14 in township thirty-three north 
range one, east of the third principal meridian contain- 
ing three hundred and four and twenty-two one-hun- 
dredths (304.22) acres more or less together with the 
shaft located on said east half of said section fourteen, 
known as ‘Carbon Shaft,’ and all of the appurtenances 
to said shaft meaning expressly to include as real estate 
in the word ‘appurtenances’ all buildings, steam engines, 
boilers, shafting, belting and implements now standing or 
being in use at or in said shaft, all of which are declared 
to be fixtures and part of the realty, excepting and re- 
serving the rights of way over said east half acquired 
by the Chicago and Rock Island Railroad Company and 
the Illinois and Michigan Canal, and also excepting and 


681 


129 


reserving that part of said east half known and described 
as lot seven,’’ and there follows a number of lots which 
are not involved in this suit. 


Now, it is a fixed principle of evidence, as I understand 
it, your Honor, that if the evidence introduced tends to 
create a variance between the allegations of the declara- 
tions and the proof offered, that the proof will be re- 
jected. Now, when you take the allegations of this dec- 
laration with reference to Section 14, the exceptions which 
are contained in this deed do not appear. Of course, it is 
easy enough to say that these are things, perhaps, which 
would only diminish the right of recovery. That is true. 
There is more of this land that the deed purports to 
convey, if it conveys anything. But, if your Honor 
please, I do invoke this doctrine very earnestly that we 
are entitled to the benefit of the rule of law which says 
that where a variance is created in this manner, that 
the proof shall be rejected. There is a way of curing it 
which was well known to counsel, as well as to myself, 
and [ don’t care to waste any time on that, because I 
have no suggestion to make to anybody, as I stated once 
before, I have got all I can do to run my own end of the 
thing. But it does create a variance. 





Now, when you come down to Section 

The Court: Get me a piece of paper, won’t you, Mr. 
Clerk, and give me a good lead pencil. 

Mr. Cuirerrirerp: Is the northwest quarter of Section 
14 in this? I forget. Do you remember? No, I don’t 
remember. 

Mr. Burrers: That is on the river, isn’t it? 

Mr. CurpeerFietp: I couldn’t tell you. 

Mr. O’Conor: Yes, 14 is practically on the river. No, 
that is way north. 


Mr. Cureerrietp: Well, the southwest is in. 


G8 


130 


Mr. O’Conor: Southwest is in. 


Mr. CurperFieLp: Yes. May I cite those authorities 
again to the court or do you wish me to? 


The Court: No, I was not taking them down. 


Mr. CurperFietp: All right. Now, then, when we come 
to the southwest fractional quarter of Section 14, which 
they allege they have fee simple ownership of, it is de- 
seribed in this purported deed conveyance as follows: 


‘‘ And all of the southwest fractional quarter of section 
14, in the township and range aforesaid, containing one 
hundred and forty-seven and thirty-one one-hundredths 
(147.31) acres more or less, excepting therefrom an un- 
divided sixty of six hundred and thirty-one (60-631) 
parts of lots described in a deed of the sheriff of La 
Salle County to Edmund D. Taylor, dated the 2d day of 
May, 1845, and recorded in the La Salle County records 
in book 16, page 512, excepting also tracts conveyed by 
Kdmund D. Taylor or the Northern Illinois Coal and 
Iron Company of La Salle, prior to March 1, 1873.”’ 


Now, that don’t purport to convey fee simple title in 
that property or any part of it, because that is an undivid- 
ed portion and if it is reserved certain exceptions as to 
property heretofore conveyed, it must appear from the 
record what part is conveyed in fee simple. 


Finally this particular deed was acknowledged before 
a notary of the State of New York. The acknowledg- 
ment is as follows: 


‘“‘T, Henry A. James, a notary public in and for the 
said city and county in the state aforesaid, do hereby 
certify that Henry L. Young, James H. Young and Ma- 
son Young, trustees under the last will and testament of 
Henry Young, deceased, who are personally known to me 
to be the same persons whose names are subscribed to 
the foregoing instrument, appeared before me this day 


684: 


685 


131 


in person and acknowledged that they signed, sealed and 
delivered the said instrument as their free and voluntary 
act as said trustees for the uses and purposes therein set 
forth. 


Given under my hand and notarial seal this 16th day 


of November, A. D. 1883. 
Henry A. JAMEs, 


Notary Public, 
New York County.’’ 


Now, there is no certificate of conformity to the laws of 
the State of New York under the hand of the clerk of 
eourt with the seal of the court attached appearing in 
connection with this deed. Nor is it attempted to be 
proved by the introduction of a statute of the State of 
New York showing it has been executed in accordance 
with the provisions of that state. It is not executed in 
Illinois. It is executed in New York, and under those 
circumstances there must be a certificate of conformity 
or proof that it does conform to the laws of the State 
of New York. 


Now, I want to refer to the case of Egan vs. Connelly, 
107 Ill. 462: 


‘‘Plaintiff gave in evidence, upon the trial, a patent 
from the United States to Cosmore G. Bruce, a deed from 
Bruce and wife to Ell N. Keys, and a deed from Keys and 
wife to plaintiff, all embracing the land in controversy. 
Defendant objected to the reading of these deeds in evi- 
dence upon the ground that the acknowledgments do not 
show that the grantors were personally known to the 
officer taking the acknowledgment. Both deeds were exe- 
euted and acknowledged in the State of Ohio and upon 
this objection heing made plaintiff offered in evidence a 
book the title page of which reads thus: ‘Statutes of 
Ohio. By authority of the General Assembly. In force 


686 


132 


August 1, 1854, Published in pursuance to the act of the 
General Assembly of April 18, 1854.’ And plaintiff then 
also offered in evidence Chapter 34, page 309, thereof, re- 
lating to the acknowledgment, etc., of conveyances. De- 
fendant objected to this evidence, but the court overruled 
the objection and permitted the statute to be read in evi- 
dence; and the court also, after the reading of this evi- 
dence, permitted the deeds to be read in evidence. HEx- 
ception was taken to this ruling and it is now assigned for 
error. No question is made but that the deeds were ac- 
knowledged as required by the statute read in evidence 
and it will therefore be unnecessary to compare the ac- 
knowledgments with the requirements of the statutes. 
We think the evidence was properly admitted.’’ 


Then it cites a section of the statute providing that 
statutes of other states may be introduced in evidence. 

‘‘And it is provided by Section 23, of Chapter 30, of 
the Revised Statutes of 1874, page 277, that ‘all deeds, 
conveyances and powers of attorney for the conveyance 
of lands lying in this state, which have been or may be 
acknowledged or proved in conformity with the laws of 
any foreign state, shall be deemed as good and valid in 
law as though acknowledged and proved in conformity 
with the existing laws of this state.’ And Section 22 pro- 
vides that ‘any legal mode of proving that the same is 
executed in conformity with such foreign law may be 
resorted to in any court in which the question of such 
acknowledgment may arise.’ ’’ 


I also cite the 39th Hlinois. 

Mr. Burrers: That is an objection to ‘‘1”? now? 

Mr, Cutperrietp: Well, I am referring now to the 
deed No. 1 and each and every one of these deeds that 


are executed in a foreign state, and I will point them out, 
but what I am saying now applies to all of them. 


687 


133 


In the 29th Illinois, on page 484. Now, here is a deed 
which is executed in the State of Virginia. 


‘Tt is insisted that the deed from Stephens, the pat- 
entee, to Fulton, was not sufficiently authenticated to en- 
title it to be read‘in evidence. There wag an attempt to 
acknowledge this deed before the County Court of Jeffer- 
son County in the State of Virginia on the 26th day of 
April, 1829, to which the clerk of that court certifies on 
the 28th day of September, in the same year. The pre- 
siding justice of that court also certifies that the clerk 
was duly elected and that his attestation is in form. 
Moore, a clerk of the same court, on the 11th day of July, 
1853, certifies to the official character of the former clerk, 
on the 28th of September, 1819; and the presiding justice 
on the same day certifies to Moore’s official character. 
Then follows a certificate of conformity to the laws of 
Virginia, in which Moore states the certificate of acknowl- 
edgment of April 26, 1819, and of the 24th of April, 1820, 
are in conformtiy to the laws of Virginia, as they existed 
on the 1st day of December, 1818, the date of the deed, 
and on the 20th day of April, 1819, and on the 24th day 
of April, 1820, the dates of the acknowledgment. 


‘“‘This certificate of conformity is not under the seal 


_ of the court, but a scroll is attached, which the clerk states 


688 


is used instead of the seal of the court, which had been 
lost. The statute declares the seal to the certificate to 
be an authentication sufficient to entitle the certificate to 
be received. Having adopted this mode of authentication, 
we must conclude that it was intended the seal of the 
court must be attached, and that a scroll or private seal 
of the clerk could not be substituted.’’ 


I simply read it as to the point of the certificate of con- 
formity. Now, I have, and your Honor has had, the ques- 
tion in a great many cases of the execution of foreign 
deeds, and where deeds are executed before a notary 


689 


134 


public there must be either a certificate of conformity 
that these deeds are executed in conformity with the stat- 
utes of Illinois, or there must be proof that these deeds 
are so executed in conformity to the laws of that state. 
It is not necessary—it does not necessarily need to be 
certified, but there must be proof before they can be 
received in evidence. Now, nothing of the sort appears 
here and those are some of the objections which I urge 
to that deed. 


Now, I will take up Exhibit 3. Now, when we come to 
Exhibit 3, if your Honor please, it was executed in 1892 
and it purports on its face to be made between the [Illinois 
Valley Coal Company of La Salle County and the State 
of Illinois, party of the first part, and the La Salle County 
Carbon Coal Company, party of the second part. I take 
it that the recitation in the preamble to the deed, or the 
clause which contains the name of the parties, does not 
aid the deed because the deed might in that clause pur- 
port to be executed by George Washington and signed 
by Thomas Smith. The statement of his name would not 
help it any. 

Now, when we get down to the signature of the deed 
we find that this deed is signed ‘‘Allen Sheldon, vice- 
president Ulimois Valley Coal Company.’’? That is all 
there is to it. If you will not deem it impertinent I would 
like to pass it up so you may see the manner in which 
the signature is made. (Handing paper to court.) 

Mr. Burrers: What did you say the name was? 

Mr. CuiperrreEtp: He signs himself on the deed 
‘* Allen Sheldon’? and follows by the words ‘‘vice-presi- 
dent Illinois Valley Coal Company.’’ That is the entire 
signature to your deed. 

Now, would it require citation of authorities under the 
long unbroken line with which your Honor is extremely 


690 


691 


135 


familiar, that those words as descripto personna. There 
is no question this deed does not purport to be executed 
by the Illinois Valley Coal Company and the name Illi- 
nois Valley Coal Company is not signed to this deed. And 
when you come to this certificate of acknowledgment you 
find that the certificate of acknowledgment is this: 


‘‘On this 14th day of October, A. D. 1892, before me, 
a notary public in and for said county, personally came 
the above named Allen Sheldon, Vice-Pres’dt. known to 
me to be the person named in and who executed the above 
instrument, and acknowledged that he executed the above 
instrument, and acknowledged that he executed the same 
for the intents and purposes therein named.’’ 


Now, that is your deed. That is all there is to it. He 
personally acknowledges that he executed—not even re- 
cites in the acknowledgment of what company he is vice- 
president, but he acknowledges that he acknowledged it— 
or that he acknowledged it for and on behalf of this com- 
pany, but it is a personal acknowledgment and a personal 
deed which is signed by himself. 


Then this deed is acknowledged in Michigan in Wayne 
County. There purports to be a certificate of conformity 
as follows: Have you the original of it so I can see if 
the seal is there? I have no doubt it is. I did not notice 
at the time if the seal was attached or not. It is that 
blue covered deed, Exhibit 3. 


Yes, that is under seal of the clerk of the Circuit Court 
of the County of Wayne and it has a certificate of con- 
formity, so I raised no question to that as in connection 
with this deed. It bears a certificate of conformity certi- 
fied under his hand with the seal of the court. 

The Court: Let me see that, please. That is the orig- 
inal, is it? 


Mr. CHIPERFIELD : That is the original. I would be 


692 


136 


very pleased to have you see that signature and anything 
else you may care to observe and look at. (Handing 
paper to court.) 


Now, here is another remarkable thing about this deed, 
which in my Judgment precludes it from being received 
in evidence as fee simple title. J don’t think your Honor 
ever saw a deed like it. I know I never did, but then my 
experience is confessedly limited and my observation per- 
haps is not as broad as some others. But let me read how 
they attempt to describe the lands in this deed: ‘‘ All of 
said lands and coal being in the County of La Salle, in the 
said state. for a particular description of which reference 
is made to the following deseribed deeds conveying titles 
to the said Illinois Valley Coal Company, viz.: a deed of 
Charles G. Wicker and wife to the said company dated 
March 27, A. D. 1870, and recorded the 30th day of April, 
A. D. 1870. Also a deed from said Wicker and wife to 
said company dated December 5, 1881, and recorded the 
14th day of the same month. Also a deed from the said 
Wicker and wife, dated March 1, 1884, and recorded on 
the 28th day of the same month, all in the records of the 
said La Salle County, Also two deeds of Horace White 
and wife, each dated the 20th day of March, A. D. 1865, 
and both recorded in said recorder’s office on the 13th day 
of May, A. D. 1865.”’ 


Right here let me call your attention to the fact that 
is not true. In this case two deeds have been introduced 
in evidence; one is from Horace White and wife and the 
other is from Margaret White in her own right and Hor- 
ace White, her husband. Assume, now, that those were 
the deeds referred to and I am going to dwell upon that 
in just a minute. I want to call attention while I am 
passing, while it 1s in mind, that that recitation is not 
true. 


‘“Also a deed of Margaret Evans, dated the 9th day of 


693 


694 


137 


June, A. D. 1884, and recorded on the 28th day of March, 
A. D. 1885, in the same office. 


‘‘Also a deed of Henry C. Freeman and wife, dated 
November 16, A. D. 1871, and recorded on the 31st day 
of May, A. D. 1872. A deed from Mary Ann Leonard, 
dated April 25, A. D. 1870, and recorded June 20th of 
the same year. A deed of Morris Neustadt and wife, 
dated June 9, 1870, and recorded July 20th of the same 
year. A deed of Lyne S. Whitmore, dated March 1, 1872, 
and recorded May 31st of the same year. A deed of Les- 
ter Dolley and wife, dated March 4, 1865, and recorded 
May 138th of the same year. Also a deed of Racheal Neu- 
stadt, Morris Neustadt, Byron Watson and others, dated 
June 2, 1870, and recorded July 20th, same year. Also 
a deed of Hiram Holmes and wife, and Horace Holmes 
and others, dated March 28, 1887, and recorded April 14, 
1890.’’ And it goes on. 


Now, can this court say that any of these parties did 
not make half a dozen deeds on that day? Can this court 
say when the deeds were recorded? It may appear that 
a deed has been introduced bearing the same date and 
mark of recordation. But is there any evidence before 
this court to show that was the only deed made on that 
date and only time of recordation, and is this court going 
to jump at a conclusion and adopt the novel course of 
inserting the description, the legal description of prem- 
ises in a deed by reference to some other deed which this 
eourt knows nothing of. It, to my mind, is a very re- 
markable thing. 


Now, it will appear to this court, ‘‘ Attest: F. O. Wyatt, 
Secretary,’’ if that is intended as one of the signatures 
necessary to convey this title, then there is no acknowl- 
edement of F. O. Wyatt; none whatever, His name does 
not appear in the acknowledgment certificate and there is 
absolutely nothing to show that he ever signed or exe- 


695 


138 


cuted this deed. Those are a few of the defects which 
exist with reference to this deed. I think there are others 
that could be pointed out. 


Now, then, we come to Exhibit 4, this is a deed from 
Horace White and Martha H. White, his wife. It is more 
than thirty years of age, which I presume proves itself, 
and if that be true there is no need wasting any time 
upon that proposition. 

Mr. Burrer: That is No. 4? 

Mr. CuHIPERFIELD: No. 4. Now, No. 5, this is a deed 
which was referred to in the other deed, which is between 
Martha H. White, late Martha H. Root, wife of Horace 
White, and that is in the same position, that it is more 
than thirty years of age and I suppose is an ancient deed 
under the authorities. 


Now, in Exhibit 6, there is a serious objection which I 
want to point out. Exhibit 6 purports to convey: ‘‘All 
of the west three-quarters of the southwest quarter of 
Section 23 in said Town 33, containing twenty acres, more 
or less; also all the coal and coal mines and all other 
mines and minerals which are situate on or may be found 
in, under or upon the east half of the northeast quarter 
of the southwest quarter of said Section Twenty-three 
(23).”? 

You will note, if your Honor please, that when it com- 
mences to deseribe Section 23 it limits the estate that is 
conveyed in this manner: ‘‘Also all the coals and coal 
mines and all other mines and minerals which are situ- 
ate on or may be found in, under or upon the east half 
of the northeast quarter of the southwest quarter of said 
Section 23, containing twenty acres, more or less, together 
with all mining rights and privileges, necessary to mine, 
dig, raise and remove said coal or other minerals from 
said premises, and all the occupation and use of said 


696 


139 


premises convenient and necessary in and while so doing 
and also all right to the surface of said premises except 
so far as the same has heretofore been conveyed by 
Charles Todd to the Illinois Central Railroad.’’ 


Now, there is an estate which is reserved and it is an 
uncertain estate. They reserve the fee simple title to 
this land and it shows merely an easement. It does not 
show title to the entire estate. It shows an easement in 
the right to use the coal under the surface of the ground. 
It does not rise to the dignity of a fee simple title to the 
land, but simply shows an easement. 


Then going on: ‘‘Also all of the northeast quarter 
of the northeast quarter of Section 27’’—that 27 is not in- 
volved in this suit. And then conveying Section 22, and 
they use this language: ‘‘Hxcepting and reserving, nev- 
ertheless, from this conveyance, the interest in that por- 
tion of the southeast quarter of Section 22 lying northerly 
of the Illinois River.’’ Now, if I am not mistaken, all of 
the southeast quarter of 21 is involved in this suit. 


Mr. Butters: I think so. 
Mr. O’Conor: AIL of it south of the river and east of 
the river. 


Mr. Currerrietp: But all of the southeast quarter 
of 21. | 


Mr. O’Conor: 21. 


Mr. Cuiperrietp: And 22. Well, those reservations 
are contained within this deed and it does not convey the 
fee simple estate that is described in the plaintiff’s dec- 
laration. 

Now, when we come to the Dolley deed, which is Ex- 
hibit 7; this is executed before a notary public in the 
State of New York and there is no certificate of con- 
formity. 


Exhibit 8 is between Rachael L. Neustadt and Morris 


697 


698 


140 


Neustadt, her husband, Byron Watson and Laura Wat- 
son, his wife, Emeline Snow and George W. Snow, her 
husband, and the Illinois Valley Coal Company. It is 
executed on the part of the Neustadts—acknowledged by 
them before a justice of the peace in La Salle County. I 
take it perhaps that may be a sufficient acknowledgment 
without a certificate, because it is in the county where 
the land is located. Now, as to Mrs. Snow and husband, 
it is executed in the County of Woodford, but it does not 
contain the acknowledgment of Mr. and Mrs. Snow. It 
does not contain the clause which was necessary to be con- 
tained at that time, that there had been a separate exam- 
ination of Mrs. Snow, and out of the presence of her 
husband. 


Mr. Butters: What is the date of that deed? 


Mr. CuHrIperFIELD: The date of that deed is June 1, 
1870. And, if I am not mistaken, the act changing a 
married woman’s—the provisions fixing the rights of a 
married woman and providing for a change in the cer- 
tificate of acknowledgment did not go into effect until 
1874. Do you remember, your Honor? 


The Court: No, I do not. 

Mr. CuriperFirtp: I do not, offhand. That is my 
judgment about it, but I can easily be wrong. 

Then the other acknowledgment seems to be in form. 
Now, we come to the last deed, exhibit 9. 

The Court: The last one I had was 7. 

Mr. CureerFietp: This is 8, your Honor. The one I 
have just referred to from New York. 

The Court: That New York deed? 

Mr. CureerFietp: Yes, sir. Just one minute. Six 
was the deed from Wicker to the Hlinois Valley Coal 


Company and No. 7, from Dolley and wife, was the New 
York deed. 


699 


141 


The Court: And what was 8? 


Mr. Cutperrretp: Hight was the deed of another, 
Neustadt. I perhaps didn’t say. 


The Court: You didn’t change the number. 


Mr. Cureerrietp: Perhaps not. ‘The last one, the 
only objection I am pointing out there— 


The Court: No evidence of separate acknowledgment? 


Mr. Cutpprrimip: No evidence as to separate ac- 
knowledgment as to Mrs. Snow. 


The Court: You did not change the number. 


Mr. Cuiperrietp: No. Oh, yes, there is one thing fur- 
ther I want to point out there. They purport here to 
have a fee simple title to a part of Section 23 that is de- 
scribed in this deed. Now, here is the reservation, in- 
stead of a fee simple title in this deed. It 1s made sub- 
ject to the right of way over the same of the Illinois 
Central Railway Company, as heretofore granted. ‘‘And 
then the party of the first part reserved the right to 
quarry stone, and remove the same, from said tract of 
land by teams or otherwise, also the right to lay a track 
from the Illinois Central Railroad track to the quarry, 
for the removal of said stone. These reservations are 
made for the benefit of George W. Snow, Rachel L. Neu- 
stadt and Morris Neustadt, her husband, and Emeline G. 
Snow, wife of G. W. Snow, and shall continue only dur- 
ing their lifetime.’’ 

Now, then, we come to the last deed, Exhibit 9. This 
is the deseription which we find—and I would like to have 
any one tell me how he can locate this land—‘‘The east 
half of the northeast quarter of southwest quarter of 
Section No. 23, Township 33, Range 1, East of the Third 
Principal Meridian, containing seventeen acres, more or 
less.’’ It does not refer to La Salle County and it don’t 
state whether it is north or south of the base line. There 


700 


142 


is no distinguishing characteristic here. It don’t even 
state it is in the State of Illinois. The description, in my 
judgement, is fatally defective. And this also is acknowl- 
edged before a justice of the peace, but as the property 
is located in the same county with the justice of the peace 
I think perhaps that is sufficient. 


Now, those, if your Honor please, are the objections 
which we wish to point out, and we think those objections 
are serious and that they are very, very far from prov- 
ing the fee simple title it is alleged in this suit, and as 
to the deeds which are executed in a representative of the 
Tllinois Valley Coal Company, they entirely fail to convey 
any estate whatsoever, in our judgment, and therefore 
we urge these objections. 


Mr. Butrers: If the court please, the objections are 
quite technical and some of them, according to our view 
of the matter, would have weight were this a different 
kind of action. This is an action of trespass. Where the 
question of title is indirectly involved— 


Mr. CuiperFrieLpD: Would you object if I made one sug- 
gestion? 


Mr. Butters: No. 


Mr. CuIPerFieLp: You must not lose sight of the fact 
there is a plea in this case that directly attacks your 
title. 


Mr. Butters: I recognized that fact when I made that 
statement. However, that plea is nothing more than a 
plea of general issue and the Supreme Court in the Zin- 
ser case so held, that it does not change the form of 
action, nor make anything triable that would not be tri- 
able if it was a general plea. Now, the rules of law that 
apply where the deeds are attacked or where a record 
is attacked collaterally are entirely different from where 
they are brought in issue in a direct proceeding. There 


701 


702 


143 


is a long line of decisions, and I say that because I have 
them at the office and ean introduce them in evidence, but 
it is an elementary proposition, as we understand it, that 
when in a proceeding it beeomes—or a challenge is made 
as to the sufficiency of a judicial record, or that an instru- 
ment that is going to be attacked or disposed of directly, 
in a direct proceeding, that the presumptions that pre- 
vail are entirely different in one case than in the other. 


Here in this case it is said we must produce as the 
foundation for this Exhibit 1 the authority of the trustees 
of the estate of one Young. 


Mr. O’Conor: Pardon me, your Honor, while Mr. Chip- 
erfield makes a suggestion, it probably would be a good 
idea at the opening of court each morning and noon to 
advise the witnesses. so that none of them will stay in 
the room. 


Mr. CurpeerFieLtp: I[ would suggest this, if Mr. Butters 
will pardon me. I don’t think, if the witnesses are to be 
excluded from the court room, it ought only to be con- 
fined to the time the jurors are absent from the room. 
If I wanted to do anything I would probably find a pre- 
text to make an argument pretty clearly outlining some 
of my views, even though the jury was not present. If 
they are to be excluded from the room I think they ought 
to be excluded and called when we want them. 


The Court: J understand, 


Mr. Burters: It is said that we must produce the 
foundation of the authority of the trustees to execute 
this deed. That would be so, probably, if it was an eject- 
ment proceeding, where the title was directly in issue, and 
was the issue that was being tried. The title here is only 
indirectly involved. Possessive right is all that is neces- 
sary to maintain this action. And while that would be 


true, we could maintain it if we only owned a life estate. 


144 


Of course, there would be a difference in that case, but 
in a case of this kind, where the issue is solely—where the 
sole issue is the damage to the entire estate. If in order 
for the defendant to make any defense it will operate as 
a defense to the action brought, the title must emanate 
from the one that brings suit. In other words, I mean 
this, the defendant cannot be heard to come in here and 
introduce a deed unless it emanates from the source un- 
der which we claim, and such as would divert and divest 
his right of action. But there. is not a particle of that, 
because the testimony shows he went into possession un- 
der this deed. So there the same issue is not involved 
here, the same character of proof. The same presump- 
tion did not prevail as would if a direct attack was made 
on the deeds. 


Now, he makes several objections here. The first one 
is, to Exhibit 1, and I will not take up all the objections 
which were made, but just briefly refer to those objections 
to which I think there is no great significance involved. 
The objection to the Henry L. Young deed is the fact that 
there was no authority showing the trustees were au- 
thorized by the court to make this deed. I think that is 
not available in this case on the ground that the pre- 
sumption is, where the deed is not attacked directly, the 
presumption is it was executed with authority. ‘The con- 
trary would be true in a suit of ejectment such as the 
ones that were cited where the authority must be shown. 
It is further said, it lacks a certificate of conformity. Now, 
our statute is clear on that subject, I think. No, the ob- 
jection was, it was acknowledged before a notary public 
in New York, and our statute makes the seal of a notary 
publie prima facie evidence, without any certificate he has 
authority to take acknowledgments. In an affidavit taken 
in another state, if a notary public states in his certificate 


he has authority to administer an oath, that is all that 


704 


145 


is required under our statute, and under our statute 
the seal of a notary public in a foreign state, and certifi- 
cate, is proper. 

Mr. Cuiperriretp: Mr. Butters, unfortunately, I guess 
I did not make myself plain. I am not questioning the 
fact that he is a notary public. 

Mr. Butters: What is your point? 

Mr. CuHIPpERFIELD: My point is this, it is not certified 
to be in conformity with a deed of the State of New York. 
His official character will appear from his seal. 

Mr. Burrers: The objection, as I understood it, was 
that it being—the deed was, I think, an ancient deed, too. 


Mr. CuHIPERFIELD: No, that was ’83. 
Mr. O’Conor: It is twenty-nine vears old. 
Mr. Criperristp: But it is not thirty. The law re- 


quires thirty. Just as bad as a man one day too young 
on the day of election. 

Mr. Butters: There is no statute— 

Mr. Cuiperrietp: The rule is so well settled. 

Mr. O’Conor: It says ‘‘about thirty years.’’ 

Mr. CureerFietp: No, it says thirty years. 

Mr. O’Conor: Some of the decisions have said forty 
years. | 

Mr. Burters: If it conforms to the laws of this state, 
certainly there can be no objection to it. Now, these cases 
which Mr. Chiperfield read are all ejectment cases. That 
is, all that I have seen. I know of no case he has read, 
that is directly—where these questions have been raised 
collaterally. 

Now, that further objection that is made to Exhibit 1, 
that the introduction of the deed in evidence will create— 
that the proof will be different from the allegations in the 


706 


146 


declaration, in that there is other property described in 
the deed from the property that is contained in the dec- 
laration, there are certain reservations made in some of 
the tracts. Now, we cannot prove all our case at once. 
There is not any way I know of, that necessitates put- 
ting in all the proof at one time. If it is true, there is 
some piece of property on which we rely to recover dam- 
ages that is not contained in this deed in full fee simple 
title, but that there is some title conveyed by this deed, 
it would be competent evidence and it would be competent 
evidence anyway for the purpose of furnishing a descrip- 
tion. The testimony here is that the Coal Company was 
in possession of all this land described in the deeds, and 
for that, reason it would be competent. But the mere 
fact that it does not describe all of the property, or that 
the deeds together might not describe all of the property, 
that a certain acre here and there was reserved, on part 
of the fee simple title, that would not be a reason why 
the deeds would not be competent evidence to prove what- 
ever title was conveyed. 


Now, there is a certain mixture in Exhibit 4—no, Ex- 
hibit 1, refers to certain property which is conveyed by 
other deeds. Now, I don’t know whether the court— 


Mr. CuiIPerFIeLD: Exhibit 3, Mr. Butters. 


Mr. Burrers: Yes. To get this clear, the Illinois Val- 
ley Coal Company received deeds for all this property 
from various persons. It is embraced in seven deeds of 
different dates. Now, then, when the first deed was made, 
from the Illinois Valley Coal Company to the La Salle 
County Carbon Coal Company, it didn’t go— 


Mr. Cuiperrretp: FEixcuse me, Mr. Butters. There are 
only six deeds. 

‘Mr. Burrers: You are right, six deeds. Now, your 
Honor, when the Hlinois Valley Coal Company conveyed 


707 


147 


to the La Salle County Carbon Coal Company, in place of 
writing out the description of all that property, as con- 
veyed by the deed, they said such property, as conveyed 
by such a deed, to the Illinois Valley Coal Company by 
such persons. The only fly speck they have pointed out 
in that deed along this line was that the name of Martha 
White, in one of the deeds, is given ahead of her husband, 
but it is nevertheless of those two people. I don’t know 
whether there is any rule of law that would despoil the 
instrument because they happened to use the wife’s name 
first. That is the same thing and that is all the deed 
said it was. It said the same property conveyed by Mar- 
tha White and her husband and it turned out in the deed 
Martha White’s name was second. It is not a require- 
ment of law that the husband’s name come first, and at 
any rate, it is a matter of defense which would not bar 
the instrument in evidence here upon which to predicate 
a title. 


Now, suggestions were made that a lot of these deeds, 
that they did not convey the entire fee. I don’t under- 
stand that is an objection that has any weight at all, be- 
cause we cannot try our lawsuit all in a minute, and if 
they were true and if we saw fit in the end to abandon 
a recovery for such titles as we didn’t have, that can be 
the only penalty that would affect the plaintiff. Now, it 
may be we have not any right to recover for the railroad 
land. I do not understand we do have a right to, but that 
does not affect the deed or its competency to sustain proof 
as to the other portions of it. Now, the objection is made 
there was no separate acknowledgment of the wife in the 
deed of 1870. Now, that would be a good objection in an 
ejectment suit, if it was not an ancient deed. I don’t 
know but what it would be a good objection anyway. I 
am not certain about that proposition. But that is an 
ancient deed, The proof necessary to lay the foundation 


148 


necessary to introduce ancient documents is, as Mr. Chip- 
erfield has correctly stated, that it must be taken from 
the archives where it is known to have been under the cus- 
tody of the grantee. Possession of the same to a certain 
extent shows it was an important paper. This is a deed 
of 1870 and it is not important for us to show in an 
ancient deed whether it was acknowledged at all or not. 
It purports to bear the signature of the wife, so I don’t 
understand there is anything in that objection. There 
is no point made on the fact these deeds were acknowl- 
edged before a justice of the peace and I don’t under- 
stand there is any objection other than to the form of the 
acknowledgment. 


Mr. Cuieerrirtp: No, I am not raising any objection. 


Mr. Burrrers: The form of the acknowledgment, as Mr. 
O’Conor has just read, the acknowledgment is in accord- 
ance with the law of this state. If it is in that form, then 
it would be a foolish objection to say it was not acknowl- 
edged in proper form. 

Mr. O’Conor: I haven’t but a few words to say, your 
Honor. Now, it seems to me this whole thing proceeds 
upon an erroneous basis. This Sanitary District is in 
this court as a trespasser and it is not the first case in 
which a plea, such as has been filed here, has been filed 
in cases of similar character. In fact, this plea has been 
filed in all these cases, so far as I know. 


Mr. CurperFistp: Let us try this case. I think that 
is the real way. 


Mr. O’Conor: Your Honor, I cannot make a sugges- 
tion— 


Mr. Cuiperrienp: What has been done in any other 
case [ insist is not a precedent. All the way through in 
this case we are hearing what has been done in other 
eases, and I want to protest against it. 


709 


710 


149 


Mr. O’Conor: You are very nervous for an old war- 
rior. If we make any suggestion that he doesn’t know. 
anything about it, he takes exception to it, but yet he tells 
the court himself how little he knows and how little ex- 
perience he has had. 


Now, in the Zinser ease, this same plea was filed and 
demurrer was interposed to it, and demurrer was sus- 
tained. Appellant filed a plea denying ownership in ap- 
pellee and a demurrer was sustained thereto. The plea 
amounted only to the general issue and the demurrer 
was properly sustained. The defendant in this case has 
come into court and filed an issue of non-ownership and 
issue has been joined upon it, but that does not raise a 
thing for the consideration of the court other than what 
would have been raised by a plea of general issue, and 
if a demurrer had been raised to that plea it probably 
would have been sustained. At any rate, it should have 
been sustained. 


Now, as I say, this District is in this court as a tres- 
passer, and that is all. And I think it is the petition that 
should first be considered when we come to decide the 
question as to why these deeds are being offered, and as 
to why they should be admitted. 


Now, I want to eall the court’s attention to the case of 
the City of Morrison vs. Horace Hinkson, in the 87th IIL, 
at page 587. It is a short case: ‘‘This is an action 
brought by appellee against appellant for injuries to his 
residence, and operated by steam, water works for rais- 
ing water for the use of the city, by which the use of the 
property of plaintiff was rendered less valuable, and the 
value of the property impaired. 


‘¢Appellee, being the owner of the ground adjoining 
the street, built his residence thereon several years be- 
fore the city commenced the construction of these works, 
and occupied the same with his family, and still continues 


Vile 


150 


to live there. In 1873, the city erected in the street a 


water tank thirty feet in diameter. This tank gave way 


and did the plaintiff some damage which was adjusted 
and paid by the city. In 1874 the city rebuilt the tank 
and put in a steam engine and thereby operated a pump. 
The works are located about forty feet from plaintiff’s 
house and some fifteen to twenty feet from the line of 
his ground. By the use of this engine (especially when 
the wind is in the east) smoke and soot are passed in and 
upon the residence to such a degree as to interfere seri- 
ously and materially with the comfort of the occupants, 
and so as to injure and impair the value of the property. 
In the Cireuit Court the verdict and judgment were for 
the plaintiff and defendant appeals.’’ 


The court decided that adversely to the rights of the 
city, saying it could use the streets for the ordinary pur- 
pose of travel and purposes incidental thereto. 


‘Tt is insisted that the grievances must be redressed, 
if grievance it be, by a public prosecution, and not by a 
private action. If the sole cause of complaint consisted 
in the obstruction of the highway, where the plaintiff had 
suffered no special damages from the obstruction, this 
doctrine might be invoked, but it has no application to 
the case here presented.’’ 


Now, this action in this case I have read from is sim- 
ilar to the action instituted here, and all it is necessary 
for the La Salle County Carbon Coal Company to do in 
this case 1s simply what the court required in the other 
ease. ‘‘Proof of possession claiming title in fee is prima 
facie proof of such title.’’ 

Now, there is no issue on the question of title here. 
The Sanitary District has no right to question, if the 
court please, the title of this plaintiff, or, rather, if ques- 
tioned, as far as we have to go, is to prove we are in pos- 


712 


7138 


151 


session and claim title in fee. Now, that is the whole 
situation and it has been decided by our courts. I do not 
presume it is entirely competent here to say to the court 
what took place in the Zinzer case or what questions 
were raised in the Zinzer case, except so far as they ap- 
pear in the opinion. Now, then, your Honor, we offered 
the deeds to this company. The first deed we offer is 
from the trustees of the estate of Henry Young. Now, 
this deed is not in issue. We offer this deed to show 
whatever the deed is, whether it is a quit-claim deed or 
otherwise, to show that we claim that described land, and 
we will follow that up by proof that since the date of this 
deed, the 8th of November, 1883, that we have been in 
possession of the land and have been paying taxes upon 
it.. Everything that is required under the law in an ac- 
tion of this kind is that we prove we are in possession and 
claim title in fee simple. We don’t have to prove a fee 
simple title. Every case that Mr. Chiperfield called tc 
the attention of the court was an ejectment, where the 
issue was fee simple title to the land. The defendant is 
standing in this court as a trespasser, and nothing better. 
Now, Exhibit 3 is this deed from the Illinois Valley Coal 
Company to the La Salle County Carbon Coal Company. 
That exhibit covers everything in so far as Section 21 is 
concerned. [Hxhibit 3 covers everything else that is in- 
volved in this lawsuit, but it does not refer to descriptions 


‘specifically. Consequently, it has been necessary to in- 


troduce these deeds, not for the purpose of proving the 
execution of the deeds. It would not make any differ- 
ence how these deeds were executed. If these deeds were 
simply signed by the grantors it would be sufficient for 
the purpose of this lawsuit. They are simply being intro- 
duced as a matter of identity and description. Simply to 
give the description referred to in this deed, through 
which the grantee, the [llinois Valley Coal Company, se- 


(14 


152 


eured title, which it afterwards conveyed to the La Salle 
County Carbon Coal Company. 


These deeds referred to in Kixhibit 3—every one of 
them except the deed from Wicker and wife. That is 
dated 1885, but every other deed, your Honor, runs back 
from 1865 to 1870. These cases Mr. Chiperfield has pre- 
sented to the court are not new to us. They have been 
considered by us just as thoroughly as they have been 
by him in this and other cases along this same line, and 
we simply introduce these deeds, if the court please, for 
the purpose of showing that since the date of these deeds 
we have been in possession of that land and claim to 
own it in fee simple, and afterwards, and during that 
time we have been paying taxes on the land. 


Mr. CurprrFIrLp: Will vou exeuse me a minute? 
Mr. O’Conor: Yes, sir. 


Mr. Cutperrietp: If this is the only purpose for which 
these deeds are offered, for the purpose of showing what 
Mr. O’Conor has just said, and are not offered for the 
purpose of proving fee simple title, I say our position is 
wrong. I concede that. If that is the only purpose for 
which these deeds are offered, then I don’t care to urge 
these objections any further. 


Mr. O’Conor: I won’t go that far. My position is 
that is not the sole purpose for which these deeds are 
introduced, nor would it be necessary to introduce the 
deeds for that purpose. We are entitled to the admission 
of these deeds for the purpose of description. These 
deeds do cover land that is not involved in this suit, but 
there is not a deed we offer that does not cover some of 
the land that is in dispute. We will identify the property 
that we claim has been damaged, and some part of that 
property will be found to be described in some of the 
deeds we have offered in evidence here. Now, these deeds 


715 


153 


are competent for that purpose. These deeds are com- 
petent to show at what time this company claimed it be- 
eame the owner of this land, since which time it has held 
it, as it claims, in open and adverse possession, paid taxes 
upon it, and I will submit to the court that under the 
decisions, that is, as far as we have to go, and the deeds 
are competent for that purpose. These deeds are all of 
eolorable title. There cannot be any question about that. 
So far as the execution of these deeds is concerned, it is 
not a matter that would be sufficient legal objection to 
keep these deeds from going into evidence for the pur- 
poses for which we want them introduced. 


Mr. Cutrerrirnp: May it please your Honor, I want 
to make it very emphatic upon this record and at every 
stage of this proceeding, that the question of title is in- 
volved. We are disputing the title of the plaintiff to each 
and every tract of land that is involved in this proceed- 
ing. We assert that they have not title to that land. 


I think it will not be a loss of time—and I often think 
that we do seriously try the patience of the court by re- 
ferring to things that have been stated before, but in 
order to present the matter, I want to call the court’s at- 
tention to this declaration. This declaration avers in 
the first count that they were the owners and in posses- 
sion of certain lands and premises in the County of La 
Salle, State of Illinois, ‘‘described as follows.’’ 


Now, it is true that possession is coupled with the own- 
ership, but the larger averment is always the controlling 
averment, and they aver that they are the owners of this 
land. Then when we come to the concluding sentence of 
the first count of the declaration, we find they make this 
averment : 


‘‘And the plaintiff avers that on, to wit: the day and 
year last aforesaid, and on divers dates prior thereto, 


FAW 


154 


the said lands and premises of the plaintiff were over- 
flowed, submerged and rendered wet and unprofitable by 
reason of the construction, enlargement of channels, ditch 
drains and other outlets by the defendant in the Coun- 
ties of Cook, Du Page and Will, in said State of Illinois, 
and by reason of the premises the lands of plaintiff afore- 
said were diminished in value to the extent of two hun- 
dred thousand dollars.”’ 


Now, the other counts are the same. I don’t mean the 
language is precisely the same, but the theory is iden- 
tical. It doesn’t require the faintest particle of argu- 
ment, your Honor, to make very plain to your Honor 
that this is a suit for injury, permanent injury to the 
lands, and to recover the difference in their market value, 
which can only be predicated upon ownership. I don’t 
want to be misunderstood. I don’t mean to say if they 
were a tenant they would not have any cause of action. 
And I don’t mean to say if they were a life tenant they 
would not have any cause of action, but the cause of ac- 
tion in either of those two cases would be the injury to the 
estate they owned and that would not have anything to 
do with a permanent injury to the entire premises. They 
could recover if they were injured. I don’t mean to be 
heard to say they could not, but the only person who can 
recover in a suit for all the damages to the premises is the 
owner of the fee, and that is alleged in each and every - 
eount of this declaration, and it 1s put in issue by the 
general issue. 


Now, in the Zinzer case, and so far as the trial of that 
bill was concerned, I say the attorneys or the court were 
extremely unfortunate. I had nothing to do with the case 
and I knew nothing about it except what I read in the 
opinion. I think my name is signed to the brief in the 
Appellate Court. I am not sure but we wrote some of 
the argument. I had nothing to do with the trial of 


155 


the ease. It is a very unfortunate situation to be found 
in any court cf the State of Illinois, but let us take this 
opinion as it appears. Now, ali this opinion holds 1s this: 
That the title was put in issue by the general issue. Why 
is not that true? The general issue put in issue the tres- 
pass on the case as a very material allegation. Every- 
thing is traversed and denied by that general issue and 
the plaintiff has to prove each and every fact. It has been 
stated that in other cases other action was taken. I don’t 
know as to that. I have a number of cases that I could 
refer to, cases where things have gone against the plain- 
tiff repeatedly. The question here is what has been de- 
cided in the various courts in the state upon this point. 
Now, there is a case here in. the 85th or 89th Illinois, 
where a person was doing an unlawful act. Why, this is 
not an unlawful act, your Honor, the overflowing of these 
lands, not in any sense of the word. If there is any act 

718 that has been held by the decisions in this class of cases 
to be a trespass, and not an illegal act, it has been the 
flowing of the water in the Illinois valley. I don’t mean 
to say that if injury has been caused that there cannot 
be damages recovered. That is a part of the act, but it 
is one of those things which in law is regarded as lawful 
and proper, as distinguished from a trespass. Now, 
counsel has cited this case— 


Mr. O’Conor: That was a municipal corporation. 


Mr. CurperFietp: Why, yes, of course it was. A mu- 
nicipal corporation doing a wrongful act that it had no 
business to do. 


Mr. O’Conor: Is it more wrongful to flood them with 
soot and smoke than it is to flood them with water? It 
was a permanent institution. 


Mr. CuiperFietp: No, it was not anything of the kind. 
It was not a permanent institution. So far as the conse- 
quences are concerned—I want to be fair. It may be just 


156 


as bad or worse, to put water on than soot; perhaps it 
is worse. But one of these acts is regarded as lawful by 
the State of Illinois and the other acts were done by a 
municipal corporation without right and you could not 
have had a recovery for permanent injury in that case, 
because the injury would have to be recurrently sued for, 
no matter whether it was done by an individual or by a 

719 corporation. It would be regarded as a nuisance and 
would be brought to an end. 


Now, let us make this case as plain as possible, and I 
don’t want to take any more time than is necessary on 
this. There are two lines of authorities that hold this: 
That where an act is done by a municipal corporation in 
pursuance to direct authority, or by a corporation in 
pursuance to a permanent plan of improvement, it is re- 
garded as a permanent injury. And if it is within its 
eharter right it is regarded as lawful, although the in- 
jury may be permanent and there may be damages re- 
covered. 


The case of Wright vs. Centralia (?) in the 85th Illi- 
nois, the case of Loeb vs. The Illinois Central in the 116th 
or 118th Illinois. There is no need to cite those cases to 
vour Honor, because you are thoroughly familiar with 
them, but the Sanitary District cannot be regarded in 
this case as a trespasser, because it is not. It is a sub- 
division, a political subdivision, of the State of Illinois, 
doing a government act, and in doing a government act, 
by the authority of law, possibly inflicting damages. If 
so, they are responsible and they must answer, but they 
do not stand in the position of trespasser. They stand 
in the position of one clothed with lawful authority, with 
specific and direct authority from the State of Illinois. 
So, it is not like a person who is an invader. That being 
true, we put in issue the ownership of this property, and 

720 we deny at each and every stage, from opening statement 


~l 


157 


to final argument, that these people own this land; that 
they are the lawful owners and also that they have the 
right to possession. 


Counse! has stated that if they have the right to pos- 
sess they have the right to recover. That is true. But 
they cannot have the right to recover for permanent in- 
jury to these lands. I don’t mean to quote his words ex- 
actly, but the thought was they were entitled to such 
damage as they could prove injury had been done to the 
lands. They are entitled to recover for damages, if dam- 
age has been done, but the permanent injury to those 
lands can be recovered by reason of the fact they are the 
owners in fee simple of those premises and not any other 
ground whatsoever. It might have been an action in 
some other form, but when they elect to take this form, 
this is the form that must stand. 


Now, we put in issue this ownership and then they say 
all of these deeds, as the record will show, that they don’t 
claim these deeds to prove ownership; ‘‘We don’t claim 
they are good in themselves, but we do put them in to 
show the time we took possession and the manner in which 
we took possession, and we are in occupation now, claim- 
ing ownership.’’ That does not rise to the dignity of an 
allegation that is made in the declaration. They say that 
those deeds are sufficient to establish title. We say they 
are not, vour Honor. If title is proven, if it is neces- 
sary to be proven, it must be proved in the regular way. 
They say this is a collateral attack. Let us see, for a min- 
ute, if it is a collateral attack. As the very basis, as the 
foundation stone upon which they build their case, they 
say: ‘‘We are the owners of the fee simple of these prem- 
ises, and we are entitled to recover for all the damages.”’ 
That is the very foundation stone upon which they build 
their case. How can that be called collateral? If that is 
not a direct attack upon their ownership. They come in 


158 


and say to us: ‘‘You pay us the money. We claim we 
are injured because we own these premises,’’ and we re- 
ply: ‘‘We have not injured you and you do not own the 
premises.’’? With that plea interposed and standing upon 
the record in this ease, there can be no recovery until 
their allegation is proved by a preponderance of the evi- 
dence. If it is necessary to prove ownership, it must be 
done according to the law. Hither itis necessary to prove 
ownership, and if it is necessary to prove ownership, it 
must be proved in one of the ways known to the law. 
That is all there is to it. It either is necessary or it is 
not necessary, and if it is necessary, less than legal proof 
will not do. 


It seems to me that is all I care to urge upon this propo- 
sition. There is nothing to be indulged in by way of 
presumption. There is nothing to be indulged in by way 
of favor. When I say favor, I don’t mean favor extended 
by the court, but there is nothing to be indulged in be- 
cause this company is suing the Sanitary District. I say 
that because I am in serious doubt—and I don’t mean 
before your Honor, because that would not apply to vour 
Honor, but I have often thought that every rule of law 
was to be merely nominal, because it was the Sanitary 
District of Chicago. It has not been so before your 
Honor and we urge the right the law gives the defendant. 
‘‘Tf you are the owner of this you must prove it and if you 
are required to prove it you must do it according to law.’’ 


These objections we have advanced have not been ad- 
vanced in a spirit of captiousness. Surely it is not cap- 
tious to say when a man executes a deed without any au- 
thority it is not good title. Surely it is not captious to 
say when a corporation executes a deed descripto per- 
sonnam, without any acknowledgment on the part of the 
corporation, surely it is not too much to say that it is 
not a valid deed. 


124 


159 


Now, the question of reservations in the deeds to these 
lands, surety it is not too much to say they do not con- 
vey the fee simple title. If they do not need to prove 
title there has been a waste of time for which we ought 
to beg the pardon of the court for not knowing the posi- 
tion, but if they do, they have got to prove it and it is 
not to be gnessed; it is not to be presumed; it is to be 
proved in the ways known to the law. 


Mr. O’Conor: I thought Mr. Chiperfield was going 
to read this case. 


Mr. CHtrPERFIELD: I will be glad to read it, if you want 
me to. J was willing to take your statement as being 
correct. 


Mr. O’Conor: I thought you misunderstood the law, 
what the law was in regard to the trespass cases. 


Mr. CuHIPEeRFIELD: Here is the only way we misunder- 
stand each other. I am not finding fault with you for 
your opinion. We misunderstand each other as to what 
is a matter of mght, rather than what is a matter of 
wrong. I contend this case now comes under the class of 
eases as the Beidler case, and a long line of cases. 


Mr. O’Conor: We are right with you on the Beidler 
case, 


Mr. Cuiperrietp: All right. 


The Court: You think this question is not one of per- 
fect title, or the superiority of the title. They think the 
question to be determined by an inquiry is as to whether 
this defendant is a trespasser or not. No question but 
some of these deeds are defective when standing by them- 
selves. I think that ordinarily persons making a deed in 
a representative capacity are obliged to prove the capac- 
ity of the one executing it before it can be treated as 
sufficient in law. It is very manifest, also, that the deed 
from the Illinois Valley Coal Company 1s not in the usual 


~ 


160 


form and it is very questionable whether it is entitled to 
be treated as the deed of that company, because of the 
way it is executed. It may be there are others less mani- 
fest, less decided imperfections, in some of these deeds; 
likely there are. And it is likely, too, that if these deeds 
were offered in and by themselves and standing alone, 
that the objection would have to be sustained, or it would 
be error not to. I really believe that is true, that if the 
only proof offered by the plaintiff of its ownership or 
title were those deeds, I doubt whether these deeds should 
go to the jury. I think, however, they are evidence tend- 
ing to prove the plaintiff’s case, the same as possession 
is evidence tending to prove; the payment of taxes is ev1- 
dence tending to prove, and I think that when all the 
facts in support of this offer are taken together, then it 
is a question for the court and jury to determine, whether 
the ownership claimed in the declaration has been estab- 
lished or not. Possession alone does not entitle a person 
to recover for permanent damages. Possession must be 
in good faith. I think these documents are evidence of 


‘the faith of the plaintiff’s claim. I think they are admis- 


sible in connection with the claim of possession or claim 
of the payment of taxes, and should go to the jury. And 
then, when all of the evidence is in, it is for the jury to 
determine whether title has been made out or not. It is 
not a question of superior title. It is not a question of 
defect in the evidence of title. That is not this question. 
It is true that the plaintiff’s measure of damages and 
right to recover is limited by the scope and extent of its 
ownership. I think the exceptions and reservations in 
these different deeds, to which the court’s attention has 
been called, do not create a variance. They may create 
an embarrassment on the part of the court in instructing 
the jury on that subject, but I am not able to see that they 
would create a variance. It may subtract that much, per- 


126 


121 


728 


161 


haps, from the plaintiff’s claim. It will operate, perhaps, to 
exclude that part of the property or any claim on the part 
of the plaintiff for damages. I rather encouraged this 
discussion on these deeds for the reason that I wanted 
information about them; not only because of my ruling 
now, but I wanted to inform myself as to the balance 
of the case. Ownership is one thing and title or evi- 
dence of title may be another. The deeds may not be 
complete in themselves, but any of them may tend to 
prove the question, and I think it is plain, as far as what 
I have to do now is concerned, that they do tend to prove 
the plaintiff’s claim, and that ought to be sufficient for 
the present for the court. 


T think I will overrule the objections. Call the jury in, 
Mr. Bailiff. 
To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 


(Whereupon the jurors resumed their places and the 
following proceedings were had in their presence) : 


Cross-Examination of the Witness Obediah Hicks read by 
Mr. Sullivan (for Mr. Chiperfield). 


There is no difference in the Desplaines River above 
Norton’s mill now than from what there was from 1870 
to 1890. The controlling works are a little above Nor- 
ton’s mill. J have seen the bed of the Desplaines River 
opposite Lemont. I can’t give the date now. I was pass- 
ing through on the train. It was a short time after the 
Santa Fe road was constructed. It would be over ten 
years. I don’t think I observed it only once since then. 
I passed there once since, driving. There was very little 
water at that time. Some years ago there was two dams 
here at Joliet. One at Jackson street, known as Dam No. 
1 and another at Jefferson street, known as Dam No. 2. 


129 


fal 


162 


The dams were just above where the bridges at Jackson 
and Jefferson streets are now located, I don’t think any 
point of them would exceed one hundred feet from the 
dam. When I spoke of skating I meant between the 
dams. These dams were taken out six or seven or eight 
years ago. 


Up to the time the dams were taken out ice would form 
in the basin between the two bridges. There is no basin 
there now to hold the water. I have been over the land 
between Jackson street and the controlling works. In 
my opinion the slope of the land between the controlling 
works and Jefferson street bridge is something over forty 
feet. Those dams at times held the water in pools. When 
I spoke of the water being offensive, I meant there was a 
stench. You didn’t have to get near them. It was no- 
ticeable quite a distance away. When you got down to 
the water itself you could notice it was foul water. It 
could be detected by the color as well as the odor. It 
has not entirely disappeared, but a great change came 
when the water came from the improvements in the Sani- 
tary District Canal. You could come within miles of it 
now without detecting the odor, and when you come up 
to it you notice a very decided change in the appearance 
of the water. It is for the better. It is not pure. It has 
the appearance of fairly pure water. It has the appear- 
ance of fairly clean water. And that condition has ex- 
isted since the time the Sanitary District turned the 
water down this way. There was no current except at 
times of high water between the bridges up to the time 
the Sanitary District turned the water this way. The bed 
of the river to the south of Dam No. 1 was very foul. Ice 
did form there, but not to the extent it did before the foul 
water came. When we had only the river then every 
winter ice formed. I mean previous to the time water 
came from the Illinois and Michigan Canal into the Des- 


~ 
we) 
bo 


734 


163 


plaines River. When I speak of the river water, I mean 
the Desplaines River water. In 1869 or thereabouts, the 
only water at this point was the water of the Desplaines 
River, until it reached the mouth of Hickory Creek. Be- 
tween 1869 and ’72 the waters of the Illinois and Mich- 
igan Canal were turned into the Desplaines River above 
those two dams and the water coming down from the 
Illinois and Michigan Canal is the water I designated as 
foul water. The foul water was noticeable during the 
time the Illinois and Michigan Canal was turned into the 
Desplaines River, with the exception of one season. There 
was one season previous to the time of the Chicago fire 
when the water between those two dams was in good 
condition, so we caught fish in there. After the Chi- 
cago fire some two weeks, the first rain came 
and flushed the sewers in Chicago into the Chicago 
River. The Chicago River, at the time of the Chicago 
fire, emptied into the Illinois and Michigan Canal. I 
know it from current report and from the water we re- 
ceived from there. Prior to the Chicago fire the Illinois 
and Michigan Canal was deepened. The connection be- 
tween the Illinois and Michigan Canal and the Chicago 
River was made at Bridgeport. I saw it at Bridgeport. 
The river didn’t have any current at that time. The cur- 
rent in the Chicago River was away from the City of 
Chicago and the sewerage would have been carried -to- 
wards the lake instead of towards the _ Illinois 
and Michigan Canal. It was merely a conclusion that 
a couple of weeks after the fire, that the Chicago River 
started to run toward the Illinois and Michigan Canal 
rather than towards Lake Michigan. I cannot fix the 
year as to the time at which the deepened channel failed 
to supply sufficient water and pumping devices were re- 
sorted to to draw water from the Chicago River, for the 
purpose of supplying current to the Illinois and Mich- 


137 


138 


164 


igan Canal. I think it is true they have been pumping 
water from the Chicago River ever since shortly after 
the Chicago fire, into the [llinois and Michigan Canal. 
All the water that comes from Chicago into the Illinois 
and Michigan Canal is turned into the Desplaines River 
before reaching Jackson street in Joliet. Judging from 
the water I think it is true that the water sent down 
through the Ulinois and Michigan Canal is drawn from 
a part of the Chicago River and has not been improved. 
I can very slightly detect the same odor in the canal that 
I could prior to the time the Sanitary District turned its 
waters into the channel at Johet. The water that goes 
through the Illinois and Michigan Canal is mingled with 
the waters of the Desplaines River and the Chicago 
Drainage Canal in the City of Johet. Above Lockport 
there 1s no such mingling of the waters. Above Lock- 
port the water that comes from the [linois and Michigan 


/ Canal is as foul as it was years ago. It was the last time 


I saw it, a few weeks ago. The Sanitary District water 
has not purified the waters that come through the Des- 
plaines River. The water that comes through the Illinois 
and Michigan Canal is very much improved. I can no- 
tice the difference between the waters of the Illinois and 
Michigan Canal above Lockport and the waters of the 
same canal this side of Lockport. I noticed the waters 
of the Drainage Canal before they mingled with the wa- 
ters of the Illinois and Michigan Canal. There is some 
odor to it. At sight, itis apparently all right. At Lock- 
port, I speak about. The masonry walls were put in at 
the time of the construction of the drainage channel. The 
river is wider at Jackson street since the walls were put 
up. J see the river very often south of the Jackson street 
bridge, down as far as McDonough street. Its average 
width is wider. The walls have not narrowed the river. 
I think it would average between two and three feet 


139 


740 


741 


165 


deeper; that is, in addition to what loose stone there is 
lying there on the channel. I have observed the elevation 
of the water as I cross this bridge. I don’t think the 
water surface is lower now than prior to the construc- 
tion of the bridge. I think the water lever is very near 
the same. I cannot judge absolutely for the reason that 
the structure of the walls and the back filling has changed 
the condition of sight there. My impression is that the 
water is fully as high now in relation to adjacent prop- 
erty as before the channel was deepened. The current 
is much more rapid. I used my judgment as to the current 
in miles per hour. Under the Jackson street bridge, I 
ean’t say. JI think I was asked between Jackson and Mc- 
Donough street and my answer was four to six miles an 
hour. That has been since the water has been turned 
through the Drainage Canal. Before that at times there 
was no current. At times when there was a current it 
would vary so much, from nothing to several miles an 
hour; from two to four. When there was high water the 
current between the bridges that were referred to as the 
Jackson street and McDonough street bridges would go 
as fast as four miles an hour. I know parties that are 
interested in suits against the Sanitary District. I have 
heard of claims now pending in Will County against the 
Sanitary District of Chicago. I know parties to such 
suits. I am not interested as much as you are in any 
such suits or lands. I have been a witness in litigation 
in which the Sanitary District of Chicago was a party; 
in two instances for the Sanitary District; possibly three. 
I never worked for the Sanitary District. I never was 
employed by them except as a witness. At those times I 
don’t know that I was called by Mr. O’Donnell. I have 
not talked this matter as to damages over with Mr. 
O’Donnell. Mr. O’Donnell asked me if I was familiar or 
had been with the condition of the river and I told him 


744 


745 


166 


I had, and that is all the information I have given Mr. 


2 O’Donnell whatever, except what I have given here to- 


day. I answered a question in the first part of my cross- 
examination and in so doing stated that the slope of the 
land from the controlling works south was in the neigh- 
borhood of forty feet. It doesn’t terminate until it 
reaches Jackson street. When I referred to a forty foot 
slope I meant between Jackson street and the controlling 
works. including the fall at Jackson street. There is a 
decided fall between Jackson street and Lake Joliet. 
Lake Joliet is two and a half miles south of the City of 
Joliet. It is a wide place in the river southwest. There 
is a pool formed southwest of Joliet that we call Lake 
Johet; at that point the water assumes a practically 
level condition. The land does not; on each side the land 
varies; there is not a regular slope. At present there 
is a current through that lake. The lake is about seven 
miles north and south. I know the current is very rapid 
down there; not rapid at the outside; the current is in 
the channel; two or three miles, I should say, in the 
lake. The widest point is between 160 and 200 rods. 
The east, southeast bank curves gradually towards the 
west, widens out towards the west at this point that I 
speak of at the head of the lake and gradually widens 
out to something about a mile below. I should say the 
average width was a hundred rods. There is a part of 
it very shallow. The current is mostly confined to the 
channel at present. Formerly it was sixteen to twenty- 
two feet deep in the channel. It is filled up with deposit 
since the Sanitary District waters have been turned in. 
I do not know that it is two or three miles an hour. T 
think it is, but it is not easily judged. It is rapid op- 
posite Rock Run. I would not say that the average cur- 
rent of the lake was two or three miles an hour. TI ean- 
not give a judgment as to the average width. T eannot 


167 


746 give the average depth of the lake when the waters of 


747 


748 


749 


750 


751 
752 


the Sanitary District were turned through the controll- 
ing works. There was no perceptible current at that 
time. I don’t know that there is any additional water- 
shed under the Drainage Canal away off in the eastern 
part of the county may be attached or may have been 
turned into Hickory Creek. I don’t know that it has 
been done but it may have been. If it is it is only a small 
district up there. Hickory Creek has the same water- 
shed now that it has always had. The Sanitary District 
has added water to the mouth of Hickory Creek by back- 
ing it up. Hickory Creek does not discharge any addi- 
tional water. I believe it to be possible that waters from 
the Sanitary District to the north and east of Joliet to 
be let into Hickory Creek and from Hickory Creek into 
the Desplaines River. I refer to the Drainage District 
somewhere in the east part of the county. I never saw 
it. [am not sure that it even exists. Perhaps water has 
been backed from the Sanitary District in a northwest- 
erly direction up that creek for thirty rods. The influ- 
ence of the waters that I say come from the Sanitary 
District are noticeable only about thirty rods. 


Re-direct Examination of the Witness Rollin L. Reed. 
(Read by Mr. O’Conor.) 


The Chicago Drainage District or Drainage Board 
turned the water into the Desplaines River at the Bear 
Trap Dam between five and six years ago. It has been 
running all the time so far as my knowledge goes. I 
have not been fishing in Lake Joliet since the waters were 
turned in. I ceased fishing in Lake Joliet because there 
were no fish to catch. I know of the deposit being made 
in Lake Joliet by the waters of the Sanitary District, by 
realizing the difficulty of running the boat over it, wher- 


793 


754 


759 


168 


ever I attempted to navigate it, except in the channel. I 
attempted to navigate perhaps the middle third of it. I 
refer to Lake Joliet. JI don’t know how much deposit I 
have discovered. 


Re-cross Examination of the Witness Rollin L. Reed. 
(Read by Mr. Sullivan.) 


There was water enough in Lake Joliet for fish to swim 
in after the deposit was made. I did navigate Lake Joliet 
prior to the time the Sanitary District turned the waters 
in over the Bear Trap Dam, parts of it, many times. I 
say that I know the trustees of the Sanitary District 
turned the water through the Bear Trap Dam five or six 
years ago, by report, newspaper accounts and seeing the 
water going over the dam; I knew it had been done; look- 
ing at the water would not give me any information as 
to who turned it in. My knowledge is based purely upon 


hearsay evidence. 
(Signed) Rotiiw L. Reep. 


Adjournment until Friday morning at 10 o’clock. 


The plaintiff offers in evidence the deposition of T. E. 
Marsh, as follows: 


T. EH. MarsH: 


Direct Exammation of the Witness T. E. Marsh. 
(Read by Mr. O’Conor.) 


My name is T’. EK. Marsh. I reside in Joliet; have lived 
there since 1849. At the present time I am in the shoe 
business. I keep a stone on Chicago street. 


I have resided on the west side since ’49. Since I was 
old enough to observe it I have been familiar with the 


756 


707 


758 


799 


760 


169 


Desplaines River between Lockport and Lemont and 
through the City of Joliet. In the year 1895 to 1900 I 
was living on the west side, at 306 North Broadway. Be- 
fore the recent changes were made in the river I have 
observed its condition in the City of Joliet in dry times. 
The condition of the river during the period prior to 
1900, in dry seasons, both winter and summer, depended 
on the pumping of water in Chicago. When they were 
not pumping there was comparatively no water going 
over the dam at Jefferson street in dry seasons. I ob- 
served that condition prior to the deepening of the canal; 
in 1871 the condition of the river at Jefferson dam, there 
was the same uniform flow. I don’t know, during the 
time subsequent to 1870 and ’71 about what depth of 
water was in the river below Jefferson street dam in 
dry times. It all depends upon the pumping. If they 
were not pumping we had comparatively no water; if 
they were we had water. I don’t know that I can tell 
about how many inches of water was going over the dam 
at that time; there was no great volume of water. I saw 
the river above Lockport between 1870 and the time of 
this new improvement. The condition of the river above 
Lockport since the first deepening and until the second 
improvement was made, in the driest times, was that a 
person could walk across dry shod by stepping from 
stone to stone. After the establishment of the Santa Fe 
Railway I have noticed the condition of the river imme- 
diately opposite the City of Lemont, in dry seasons. It 
was like a small creek; no water there to speak of; noth- 
ing to speak of. 


Cross-Examination of the Witness T. E. Marsh. 
* (Read by Mr. Sullivan.) 


I am not in any way, directly or indirectly, interested 
in any litigation against the Sanitary District; no inter- 


761 


762 


763 


170 


est whatever. J have been acquainted with the Des- 
plaines River since I was old enough to know anything. 
I was born in ’49 and have known it all my life. I have 
known this stream since 1855. In dry seasons the Des- 
plaines River would get very low, prior to 1870. I do not 
know what constitutes the watershed of the Desplaines 
River and what streams or rivers are tributary to it. 
What I mean to say is that when there was no rainfall 
in or upon the watershed of the Desplaines River, the 
stream would get very low. I do not mean that the stream 
ever got absolutely dry. There was always more or less 
water. I don’t know whether it is true that the lowest 
recorded flow of the Desplaines River, covering a period 
of forty or fifty years, was fifty cubic feet of water per 
minute. I don’t know that that statement is not cor- 
rect. All that I mean to say is that during these dry 
seasons the river would get very low. At times there 
wasn’t hardly any current between Lockport and Le- 
mont. I do not mean to say there has ever been a time 
in my observation that there has been no current in the 
stream. There was always more or less current. In 
times of heavy rain or wet weather in the country above, 
the stream would become at times a large and rapid 
stream. The volume of the Desplaines River always 
depended upon the amount of rainfall within the water- 
shed of that stream. There is a portion of the Desplaines 
River from Lockport to Joliet that was not entirely de- 
pendent upon it. Above I think it was wholly dependent 
upon that. In wet seasons the stream was practically 
full; in dry seasons it was very low. 


The change I spoke of in 1870 was known here as the 
Deep Cut. It is an improvement made by the City of 
Joliet to provide drainage for the city; deepening of the 
Illinois and Michigan Canal. Into the Illinois and Mich- 
igan Canal, from 1870 down to some time in 1900, the 


764 


765 


766 


171 
sewage of the City of Chicago was pumped. It flowed 
down through the [llinois and Michigan Canal to a point 
at or near Lockport. The excess of water above that 
necessary for keeping the canal to a certain level was 
discharged into the Desplaines River. It was a contin- 
uous level, practically speaking, from Bridgeport to Lock- 
port on the canal. This diluted sewage was turned into 
the Desplaines River at Lockport and flowed through the 
Desplaines River, some of it, into what is known 
as the upper basin. It all came into the upper 
basin. I don’t mean to say that all of this water 
that was discharged at Lockport eventually got back into 
the Channahon level of the Illinois and Michigan Canal. 
It was all discharged through its outlet of the Desplaines 
River. Some went into the canal and some went into 
the river. All that didn’t go into the canal was discharged 
into the Desplaines River. The sewage, prior to 1900, 
was diluted by water of the Chicago River. In other 
words, the sewage was discharged into the Chicago River 
and pumped from the river into the [llmois and Mich- 
igan Canal. I don’t know how much water during all of 
that period of time was pumped per hour. The point of 
discharge was at Norton’s Mill; the hydraulic basin they 
used to eall it. Norton’ Mill is at Lockport. I am not 
sure whether more of the waters were discharged at 
Lockport than was needed for the mill or not; there was 
a certain amount of water discharged there; how much, 
I don’t know. I don’t know of any other connection be- 
tween the Illinois and Michigan Canal and the Desplaines 
River than I have mentioned. Below the point that I 
have mentioned is a place of discharge from the Illinois 


and Michigan Canal. I have known the stream to be 


dry since 1870 or ’71, at times. That, of course, would 
be when the canal was empty; when there was no dis- 
charge from the canal. The substance that was dis- 


i 


67 


768 


769 


~l 


172 


charged from the Illinois and Michigan Canal was very 
foul in its condition, had a very offensive smell and odor. 
It could be observed a very considerable distance in and 
about Joliet. Since the Sanitary District channel has 
been discharging its waters into the Desplaines River, it 
has been very greatly improved. It has at times—there 
are times when it is quite offensive even now. The water 
that is in the Illinois and Michigan Canal above the point 
of discharge is still foul and offensive. Whether the 
waters of the Sanitary District, where it discharges into 
the Desplaines River, is apparently pure and clean de- 
pends on what you mean by pure and clean. I would not 
eall it pure and clean from appearance. It has a muddy 
appearance all the time. It is offensive in odor at times. 
I have observed it many times when I cross the bridge 
at night, when the atmosphere was heavy. This bridge 
is located at Cass street; also at Jefferson street. The 
water is apparently clean, from appearances, at the con- 
trolling works. I have seen people step on stones and 
thus cross the river at Lemont. I would not be able to 
say whether it had been extremely dry or not. I have 
seen them do it. The low condition of the river was 
caused by the dry season; I don’t know whether it was 
extremely dry; I can’t say as to that; I had no reason 
for remembering. Between 1874 and 1882 I have no- 
ticed it often. Of course it was a dry season, but whether 
it was particularly dry or not, I cannot say. During a 
season of average, or more than average rainfall, there 
would be considerable water in the river at Lemont. I 
ean’t say how dried I have seen this stream prior to 
1900 because I never made any measurements. I told 
you that I had seen people cross the river dry shod. 
The widest I have ever seen it was in August of ’65, I 
think, ’65 or ’66, when it was practically all over the 


771 plain. Well, it was full from the Lllinois and Michigan 


(72 


173 


173 


Canal to the bluff. I would say it was half or three-quar- 
ters of a mile wide, but I may be away off. I never had 
any oceasion to note the distance. It may have been 
nearer a mile and a half. I have no means of knowing 
the depth of the stream at this time. 


Re-direct Examination of the Witness T. E. Marsh. 
(Read by Mr. O’Conor.) 


In the vicinity of Lemont and Romeoville, a distance 
of three or four miles this side of Lemont, the natural 
bed of the Desplaines River was shallow. I did not ob- 
serve particularly opposite Lemont what the substance 
was underlying the river. I know there was stones there. 
I should say it was a limestone body generally down the 
valley. I should say the whole valley here was lined 
with limestone. High water appeared in the Desplaines 
River, during the years I have spoken of, generally in 
the spring of the year. In the Desplaines River there 
was comparatively little water in the summer and fall 
seasons. 


Re-cross Examination of the Witness T. EH. Marsh. 
(Read by Mr. Sullivan.) 


Whenever considerable rainfall took place in the coun- 
try above Lemnot, Riverside and Joliet, it was immedi- 
ately followed by higher water in the river. So, if the 
heavy rains did not take place at the times I have men- 
tioned, the increase in the stage of the water would fol- 
low then whenever they did take place. 


(Signed)T. E. Marsu. 


(74 


(17 


174 


Plaintiff offers in evidence the deposition of Thomas’ 
J. Kelly. 


THomas J. KELLY: 


Direct Examination. 
(Read by Mr. O’Conor.) 


My name is Thomas J. Kelly. I reside in Joliet; have 
resided in Will County ever since 1849; live about 275 
feet from the Desplaines River. I am in the dry goods 
business. My dry goods store and residence are lo- 
cated in the same place. A part of the time I resided 
on the west side in Joliet; west of the river, at Broadway. 
That residence was a block and a half from the canal and 
river, which were at that time both one. We owned some 
property in the north end of this ward, corner of Ben- 
ton and Joliet streets. My brothers and sisters have 
been interested in farm lands in the town of Lockport 
near the Desplaines River. That is on the west side. 
Father bought that land in ’64. I have been Mayor of 
Joliet. I was elected in ’83 first; then in ’85 and ’89; 
have served three terms as Mayor. I had to cross the 
Desplaines River frequently, during the time I have re- 
sided in Joliet. I remember the improvement in the river 
known as the Sanitary District work, occurring five or 
six or more years ago. Prior to that time I noticed the 
condition of the water in the river at different seasons 
of the year. Prior to 1870, in Joliet, in dry seasons there 
was very sligh flow of water, just sufficient to lock 
the boats through and what was used by the Norton Mill 
in Lockport. You could walk across the river below the 
Jefferson street dam with an ordinary pair of shoes on, 
without getting your feet wet. I remember the work 
known as the deepening of the canal, which was sought 


778 


ia 


780 


175 


to be done in ’69 or ’70. When I speak of locking boats 
through, I refer to the Illinois and Michigan Canal. In 
1870 and after this new cut in the Illinois and Michigan 
Canal, there was always a fairly good supply of water in 
the Desplaines River in Joliet, at and below the Jefferson 
street dam, in dry times. There was enough to make a 
thin sheet over the dams; the dams were never dry. Be- 
fore that cut, you could walk across the face of the lower 
dam there. There was water escaping from the Illinois 
and Michigan Canal at Lockport during those years. One 
outlet is where the race-way, where the water came 
through from Norton’s Mills and about a mile and a half 
above Lockport; there is a waste weir on the Fitz Patrick 
farm. North of Lockport was what was known as the 
Fitz Patrick farm, occupying a cross section of the valley 
from the Illinois and Michigan Canal to the west bluff, 
prior to 18938. Before the sanitary work in the valley I 
noticed the condition of the Desplaines River north of 
Lockport in dry seasons, above where this water from the 
Norton weir came in. I have seen it as dry as the surface 
of our street before it would be sprinkled; absolutely dry. 
In the summer there was generally a low stage after the 
spring rains go out. I just looked at the condition of the 
river immediately opposite Lemont, prior to 1893, from 
the cars, going past; that is all. There is some place in 
front of the depot, where the main channel would be en- 
tirely dry; even above, where the Santa Fe crossed the 
river, there would be only a little water there, but I gen- 
erally went on the Rock Island, so I never noticed it many 
times. Romeo is called four miles from Lemont. It is 
actually about three miles from the north line of Lockport. 
Romeoville is between Lemont and Joliet. From Lemont 
to Lockport the general character of the natural bed of the 
Desplaines River is pretty shallow, except in a few places 
where there were pools. The substance underlying the 


781 


183 


784 


785 


786 


176 


river there was rock. For along way below Lemont, there 
was a diversion channel made there to take the flow. The 
highest water generally appeared in the Desplaines River 
during the spring. I was familiar with the lands adjoin- 
ing the river between Romeo and Joliet during those dif- 
ferent years, before 1893. During the summer season, on 
an average, after the Ist of May, I cannot give you any 
guess as to how wide was the portion occupied by the Des- 
plaines River in that valley. Lands were used for pasture 
and meadow. I remember some islands in the City of 
Joliet below the Jefferson street bridge; before 1893 and 
after ’70, there might have been probably in some chan- 
nels six or eight inches of water. There was a pool di- 
rectly east of that island that was pretty deep; so deep 
that a horse would have to swim init. Between the island 
and the bridge there was about six or eight feet of water. 
I ean show you a photograph of the water. It was taken . 
on the day they commenced taking out that island. I 
haven’t the photograph with me. It would show the stage 
of the water. I observed the condition of the basin im- 
mediately above the Jefferson street dam as to freezing 
in the winter times before this change; if the winter was 
eold enough it froze. Since the Sanitary District work, 
and since the dam has been taken out, the river has never 
frozen, so far as I have observed; not below the Jefferson 
street dam. I know a road leading out of the Village of 
Lockport called Ninth street. It runs a little north of 
west. It crosses the Desplaines Valley. Since putting in 
the controlling works and the change in the river there is a 
bridge over the channel of the Desplaines River at Ninth 
street. That bridge is about 100 rods to 110 from the econ- 
trolling works. Since the turning in of the water in 1900, 
under the Ninth street bridge, the width is about two 
spans, 600 feet. On the east side the water does not ex- 
tend east of the bridge; on the west side it does a little 


187 
788 


789 


790 


177 


above and below. The width of the channel under this 
Ninth street bridge is about the same as the width on the 
Ninth street bridge up to the controlling works. It con- 
tinues down to below the Sixteenth street bridge. I have 
seen this water channel under the Ninth street bridge fre- 
quently during the last five years. My relatives reside 


-west of Lockport. Have seen it every time we go up to 


see the folks, generally Sundays. The entire mouth of the 
channel was occupied by water; the flow was quite rapid. 
There is just a murmur that flowing water would have, as 
it passes the pier or abuttments on the bridge. At the 
times I have seen it, that was generally along in the fore- 
noon and in the evening again, it was generally uniform. 
I have never seen a greatly increased flow there but once. 
The sound was as uniform as the water pouring over the 
dam here in Joliet. It is one of those sounds that you 
hardly notice until itis stopped. A boat coming from the 
south, in order to pass through the City of Joliet, it would 
look through what is known as the Jefferson street south 
into the lower basin. From that it would enter the upper 
basin from the lock at Jackson street. It would come out 
of the upper basin a little below the penitentiary north 
of the City of Joliet. It would then get into the canal 
proper towards Lockport and Chicago. 


Cross-Examimation of the Witness Thomas J. Kelly. 
(Read by Mr. Sullivan.) 


Prior to the removal of the dams at Jefferson street 
and at Jackson street, the water in the basins above these 
dams, in cold seasons, would freeze. Above each of these 
dams there would be a natural water level extending 
back for a considerable distance, and that would consti- 
tute two practical slack water powers, except in times 
of flood. Under ordinary conditions it would make and 


fou 


+) 


~] 


794 


178 


constitute two slack water powers. The natural contour 
of the bed of the stream was a quite sharp descent. With 
the removal of those dams the slack water powers were 
destroyed and the river then occupied, unobstructed, its 
natural bed and, of course, followed the general slope of 
the ground. The current was a very small affair. There 
was quite a flow to it, but not a large volume of -~water.. 
It was an ordinary rapid stream. Well, there was about 
a mile and a half south of town here, there was a small 
shallow place in the river there and that used to freeze 
in the winter. There was a decided change in the current 
of this stream after the removal of the dams, where the 
dams were. Low water in the Desplaines River would 
prevail mostly along the latter part of the summer or 
early fall. All seasons of course are not the same. I 
never noticed the lowest stages of water during the driest 
seasons especially. We have had some men that make 
notes of those things every day. Naturally, during the 
dry seasons, the river would be the lowest. I never re- 
member except once that the Desplaines River got very 
high. I think that was in ’65. I remember the May 
floods in 1892, not the later ones. There was extremely 
high water in the Desplaines River at that time. I went 
up to Chicago the morning after the heavy rain. I went 
to the Alton depot and there was no train and I had to 
take an Alton train on the Rock Island. We came back 
on the Alton, as the damages were repaired by that time. 
It looked as though it was overflowed to the other side. 
It would probably be a mile or a mile and a half. It was 


) not water to the Summit. I[ don’t know what the object 


of the Ogden Ditch was. I suppose to work some of the 
Chicago water down this way. I know there was water 
enough there to flow towards the lake. During a dry sea- 
son the Desplaines River would be low and during a wet 
season it would be high. Prior to 1870, it would not be 


196 


798 


179 


high in the summer season unless there were some un- 
usual freshets. Prior to 1870 there were only natural 
causes. In 1870 there was a change in the condition of 
the Desplaines River in Joliet, by reason of water added 
from the Illinois and Michigan Canal. I have heard the 
eapacity of the pumps at Bridgeport, but I believe they 
were not able to send down much more than one-third. I 
think the usual amount sent down was about 30,000 to 
30,000 cubic feet a minute. I have observed the condi- 
tion of the waters of the Illinois and Michigan Canal. It 
was by reason of its noisome stench it was forced upon 
my attention. I was interested in having the sewage sur- 
plus as much diluted as possible. JI had no personal ob- 
servation; what I have on that question is all hearsay. I 
know the water was coming down there. My judgment 
wouldn’t be worth a cent. I didn’t measure the depth 
or velocity. Aside from the information I have already 
given, I have no further judgment upon the matter as 
to the amount. It all entered in the upper basin. There 
was only one point of entrance. There was one diversion 
at the Norton Mill. Eventually all of the water that was 
pumped in at the City of Chicago was merged into and 
with the Desplaines River here. There was more than 
was diverted. There was more diverted than was re- 
quired for the purpose of feeding the Channahon level. 
There was also water diverted as power for manufactur- 


799 ing down the canal here. That refers to the several small 


islands in the Desplaines River below where the Jeffer- 
son street dam formerly was; one was a few rods below 
the Jefferson street bridge; it might be 175 or 200 feet, 
the rocky island that was with some trees. It was high, 
considering the elevation of the banks everywhere else. 
It might be eight or ten feet above the water; above the 
low stage. The other was a low island near the Rock 


800 Island. I never saw the upper one covered before 1900. 


805 


804 


180 


I have seen the lower one entirely submerged every year 
The water went up pretty well on the upper one; it was 
not submerged. I have known this island to be submerged 
so that not to exceed a couple of feet of it would be above 
water. This condition would not prevail before 1900 in 
ordinary water; they followed abnormal rainfalls. When- 
ever those abnormal rainfalls took place the result was 
apparent in the stream. The Norton Mill was there 
about in the ’50’s, sometime. It was a water power mill. 
I don’t know that it got its water from the Desplaines 
River before that time. When there would be six or eight 
inches of water adjacent to this island in the Desplaines 
River below Jefferson street, that would be a low stage 
of water. I do not wish to make it understood that it 
was six or eight inches at all times. The bridge men- 
tioned at Ninth street, which was 600 feet in length, cov- 
ered the water that was spilled out from the controlling 
works of the Sanitary District, and the water that came 
down the Desplaines River also. Before the Sanitary 
District discharged its water there was a bridge for use 
between there and the town, a stone bridge. I couldn’t 
tell you the width of that old bridge. I don’t know. It 
was built in 768, I know. I have never given the matter 
any thought even. I don’t like to guess at that I could 
measure. My guess would not be worth anything. I 
know about the width of this 600 foot bridge. I would 
not like to give my judgment as to the length of this old 
stone bridge. The water that came from the Desplaines 
River and also the water weir north of Lockport used 
to flow under that bridge. I have known conditions to 
exist upon the Desplaines River during the time that 
this old bridge stood there, where the old bridge acted as 
a dam for the water and held the water up above and 
backed it up over the country, for miles above it. There 
didn’t seem to be any difference above or below the 


805 


S06 


807 


808 


809 


810 


181 


bridge; it was all covered everywhere. The water flowed 
out and around the bridge and across the road, and on 
each side of the bridge. I think this bridge stood about 
ten or twelve feet to the arches, above the bed of the 
stream, at low water, and then the stone work above 
that for the guards and everything. I could only fur- 
nish an opinion as to the height of the water on this 
bridge in extreme high water and it would be that. it 
came up to the top of the arches. I couldn’t estimate 
the exact depth of the water flowing under the present 
bridge at Ninth street. It looks to be along three or four 
feet. I think less than four and probably more than 
three. The velocity is quite rapid. I am not able to give 
an opinion as to the velocity of this stream. In 1892 
and in 1865, and I can only remember two other occasions 
between those years, when there were extreme freshets 
in the Desplaines River at Joliet. I couldn’t tell you 
the years. That is the only extreme freshets I recollect. 
The river seemed to be practically what it would be in a 
stream that wouldn’t have any bridge at all there, at the 
old stone bridge. It was a rapid current above and be- 
low. After the removal of dams number 1 and 2, the 
natural deposit was taken out and a large amount of ex- 
cavation was done at the sides and bottom. It varies in 
width. That is about half way. between the Jefferson 
street and Cass street bridges. There was none at the 
west; and a gradual widening; excavation commenced at 
the east side. I couldn’t tell what was the general depth 
of the excavation. I couldn’t tell the natural declivity in 
the changed channel of the Desplaines River, after the 
removal of dams number 1 and 2. It was whatever the 
drainage channel required for its construction. 


Q. As a matter of fact there has been high water upon 
different occasions nearly every year within your recol- 


182 


lection? A. Not that done us any harm. It stayed in 
the river channel. 
Certainly there has been high water nearly every year 
after the spring rains. 
(Signed.) THomas J. KeEtty. 


811 


813 


814 


816 


183 


Deposition of W. H. Irwin, offered in evidence on be- 
half of the plaintiff. 


W. H. Irwin: 


Direct Examination. 
(Read by Mr. Butters.) 


My name is W. H. Irwin. I live in Ottawa, Illinois, and 
have lived there since 1889. My business is civil engi- 
neering and surveying. That has been my business, with 
the exception of four years, since about 1880. I have been 
county surveyor and civil engineer, Ottawa and Peru; 
have been such ten to twelve years, probably. I have 
made surveys of all parts of Sections 21, 22, 23 and 24. 
That is in La Salle Township. I presume you refer to 
the Town of Peru and La Salle. I would state that these 
surveys were made at different times from 1890 to 1895 
and then the last I was over there on the 8th of Novem- 
ber, I was on part of that ground. Mr. Woods, a mining 
engineer for the La Salle County Carbon Coal Company 
was with me. I was doing work for the La Salle County 
Carbon Coal Company on Sections 22 and 23, and north 
of the river also on 14 and 22. On the south side of the 
river I have been on section 21 for Mr. Wall, La Salle 
County Carbon Coal Company. Also I did work on 21 
for the Brown estate, who own a part of that, who at 
that time owned the part west of MceCormick’s slough. 
I made field notes and measurements. I simply brought 
the times here. I have them in some six or eight differ- 
ent books. I can produce them if they are needed but I 
have made a map from those notes. I made a map of the 
measurements and the property surveyed by me, in refer- 
ence to which I have been interrogated. 


Mr. CuiperrieLp: I stated that this map could be ad- 


817 


184 


mitted without further proof, reserving the right to cross- 
examine as to the manner in which it was made, and as 
to what appears on it. 


The figures as given in each tract represent the num- 
ber of acres in the tract as platted or as shown on the 
plat. The different words that are there are sufficient 
of themselves to show what they are to designate. That 
is what they are put there for. 


The Court: Q. Is it drawn to a scale, if so, what 
scale? 
A. 500 feet to the inch. 


The top would be north, the right hand would be east, 
the left hand west. : 


Which said map is marked Exhibit 13 and is in the 
words and figures following: 


W\\\ WO FS, “wyatt! Ra 
s EE. “tS La t4 


‘ \\ } WON lis 








URIVE! SITY OF ios 


af 


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S>. 
Ps 


Me . 
ee See 


Cvs a 


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Ct ae oe + ae hs ree memes iy gp ee Oo 


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Lawes wren ak o4, 


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819 


820 


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823 


185 


Exuisit 13. 

Copy of map. 

The first time I surveyed there was in October, 1892. 
On this land in section 21 there was mostly weeds and 
willows, to my recollection. It was a very wet year. 
Nearly everything was drowned out on the bottoms that 
year. In June, 1895, was the next time in which I was 
on 21 and at that time a large part of it was plowed and 
some was planted. I couldn’t state just exactly how much 
but there was quite a part. I may have seen part of sec- 
tion 22 and 23 that year but I would not be positive as to 
that. In February, 1893, and in April, 18938, I was doing 
some work on sections 14 and 23; the southern part of 
section 23 and the eastern part. We ran our lines over 
north to the river. In February and April there was 
growing. there nothing unless it was scattering weeds. 
The last time I was on the land was the 8th of November. 
I did some work on sections 23 and 26 July 16th to Aug- 
ust 22, 1893, or 1890, I should say. At that time we ran 
both lines, the east and west lines of section 23 north of 
the river. We ran the section line. I ran lines at that 
time on the whole of section 28. I made no note of what 
was growing on the land in a general way. That was 
July 16th to August 22d, we made quite an extensive sur- 
vey of a great part of the bottom at that time and also 
of section 26 south of it. I have no recollection on that 
subject. J-observed what was growing on the land while 
I worked there. Corn was growing at that time; corn 
and along the edges in spots where we ran the meander 
lines there were weeds and willows and all that growth 
that you would usually see on bottom lands. 


824 


826 


186 


Cross-Examnation of the Witness W. H. Irwin, by Mr. 
Chiperfield. 


I am usually called a civil engineer. I have been called 
that by many people. I work at civil engineering and 
surveying. The most of my work is done in La Salle 
County, you might say, and adjoining counties. I have 
worked a large part of my life. My work has been Mu- 
nicipal work and some construction work on bridges and 
foundations. It has been that scope or class of work 
such as usually would be found in this and adjoining 
counties. I commenced some work for the La Salle Coun- 
ty Carbon Coal Company last Friday, the 8th of the 
month. J was down there in their employ and I have 
since then made this map. I presume I am appearing in 
this case as a witness in their employ; they have sub- 
poenaed me. What the exception of the meander of the 
Illinois River east from the quarter section line of 21 
and southeast of that section line I have run all the lines, 
or assisted in doing it. The plat is my own work with 
the exception of the lettering. That is put on by a young 
man in my office, but the plat was made from surveys 
made by me with just that one exception showing the 
river line along the east half of the southeast quarter 
of section 21. I ran the line, the section line north. I 
surveyed the west edge of the Big Vermillion River. I 
got the other outlines from measurements at the bridge. 
I have measured the width of the river at the bridge 
which crosses the Deer Park road. I have not surveyed 
the east bank of the Vermillion River but I have meas- 
ured the width of it at the bridge, and also at the quarter 
section line about a mile north of it. The scale of this 
map is 900 feet to an inch. I did not survey the east 
bank. I measured the river, as I said, on the section 
lines. That would be at two points; all the distance be- 
tween those points, I just sketched it in; I assumed it. 


828 


830 


831 


832 


187 


I made these two measurements. I sketched the other 
thing from the lay of the land, from the eye. This is 
merely a visual reproduction of the east bank, yes sir. 
I did not survey the right of way of the C. B. & Q. Rail- 
road which is on this plat. I got the points of their lo- 
eation, the location of their center line I got from maps 
in the recorder’s office platted the right of way; to that 
extent I adopted that from a map not made from my 
survey. I haven’t got the field notes for that survey, 
except what I copied from the county records. I only 
know that I have platted the line where that intersected 
it and that I have drawn the railroad in from those notes 
to those points. I don’t know whether those field notes 
were correct or not, only as I know another man’s work. 
If it will scale out pretty good on the map, we assume 
it is correct. Any other man’s work is correct depend- 
ing on whether he does it right or not. If you can check 
up his work reasonably well then when you make a plat 
you don’t investigate any further. I did not survey the 
Ilinois Central Railroad only at points where we crossed 
it. The two lines running parallel to the Illinois Central 
Railroad, about an inch and a half apart, indicate the 
right of way; I did not survey it. JI deducted it from 
the total; went around the whole of it. As I say, I took 
that from plats on file in the recorder’s office. This plat 
is made from their maps to that extent. We assumed 
the number of tracts that there are on this I. C. R. R. 
right of way. We did not state them out. In running our 
meander lines along the river we got into section points 
at the south bank and took the angle of the bridge and 
from that we have platted it. I don’t remember the 
width. I think it is about an eighteen foot roadway. 
That scaled out width there is probably exaggerated; it 
will be exaggerated. We usually do that with bridges, 
show them larger than they are. It may not be correct 


833 


834 


835 


188 


to scale. As I understand, from the descriptions, the 
plat indicates the outlines of their property, of the prop- 
erty of the plaintiff. I did not have it in mind that all 
of the south half of section 23 is involved in this suit. 
This plat shows all of section 23. I understand from the 
attorneys that the parts where the acreage are shown are 
involved in this suit. [I don’t know of my own knowledge 
what is involved. The dotted line on section ... on the 
south part of section 23, which is to indicate the south 
line of the bottom lands, the north line of the south half 
of section 23 east and west of the Illinois Central Rail- 
road right of way, that part of section 24 north of this 
dotted line and south line of the bottoms, and west of 
the Vermillion River, and all of that part of section 21 
and all of those tracts of section 21 where the acreage is 
shown. I have been informed this plat is a plat of the 
property involved in this suit. I don’t know; of my own 
knowledge, I don’t know what are the boundaries of the 
La Salle County Carbon Coal Company, only as I have 
been informed. I have not attempted to ascertain them 
for myself. 


The dotted line along the south half of Sections 22 and 
23 and running into 24, I mean by that it is the lands 
that are subject to overflow; the bottom lands, as they 
are usually called. It is my idea that is the high water 
mark ordinarily. Some years it is higher than others. 
I have put the mark where I found the drift-wood at 
present to show it. I have no way of knowing exactly 
where the high water mark is, only by observation of 
drift-wood like that which I know are brought to certain 
places by high water; it is approximately correct. It was 
my: idea of the high water mark. I surveyed that line 
last Wednesday, or last Friday, I spent a day over there. 
It is 118 feet north of the center of the road on the east 
line of Section 23. It is 290 feet northwesterly on the 


837 


838 


189 


line of the Illinois Central. The interval between those 
two points, we took the angle of the switch down there 
and laid it out on the plat; on this spur, yes. JI made the 
roadway of the Illinois Central Railroad 1,056 feet wide, 
028 to the center. 


(). Now, tell me, if you please, how much of that in 
acres would there be coming out of Section 23? A. There 
are about 103 acres. 


In the south half of Section 23, about two-thirds of that 
amount, judging roughly; the 5.75 acres indicated on Sec- 
tion 24 is that part of Section 24 lying north of what 
you might call the south—what 1s there called the south 
line of the bottom lands between the Vermillion .River 
and the west line of Section 24. I do not include any of 
the C., B. & Q. right of way. 

(). In the east half of the southeast quarter of Sec- 
tion 23, you have indicated 39.62 acres, what do you 
mean by that? A. The net area exclusive of the rail- 
road’s right of way. 


I made those land measurements myself in each in 
stance. J ran the section line on the east and west bound- 
aries; also the quarter section line of Section 23; also 
the quarter section line north through the center of 
Section 23, from which they are computed; to the quar- 
ter section line across 23, the line was closed. I never 
surveyed this entire 39.62 acres. J computed it from the 
surveys on the whole quarter section. I surveyed above 
the switch, surveyed on the north line of this tract, on 
the east line and on the west line of the quarter section. 


Q. But vou did not survey the half quarter section 
line or the 80 acre line, did you? A. Only as I came 
along with the survey of the switch. 


I picked it up when I got there. I did not make any 
survey. 


839 


840 


841 


190 


(). For instance, the west half of the southeast quarter 
of Section 23, you figure there is 44.88 acres in that; 
how do you determine that? A. In the same way as the 
other. 


Q@. And in the north, or in the southwest quarter of 
Section 23, a little triangular piece just by the center of 
the section and east of the right of way which you com- 
pute as 1.10 acres? A. Yes. 


Q. How did you get that? A. By the same survey 
that I did the other. 


I got the 18.41 acres on that same half of the south- 
west quarter by the same survey. On the west half of 
the southwest quarter of Section 23 I compute there is 
60.51 acres. I made that by the same survey. Also as 
to the 19.27 acres and 21.25 acres on the west half of the 
northwest quarter of Section 23, I got that by a survey 
which I made of the whole tract, by running these lines 
which I have stated. I did not run the lines around 
each of these tracts. I got the tract 35.95 acres in the 
southwest quarter of Section 22 in the same way. I have 
only computed the areas to the north slope of that switch. 
The dotted line is practically the high water mark. There 
was some low land a little south of the switch. That is 
where I made my computation. The 52.54 acres in the 
east half of the southeast quarter of Section 21 is the 
area of the land between the west line of the tract and 
the top angle of the bank of the river. If I recollect 
rightly there is about twenty feet north and south in 
the south quarter and thirty-six feet east and west, that 
much of an excess; that is my recollection on it. In the 
east half of the southwest quarter of 21 I compute there 
is eighty-two acres. In the west half of the southwest 
quarter of 21 I compute there is 52.63 acres. Those were 
the results of actual measurements. With the exception 
of the meanders of the Illinois River on the quarter sec- 


$42 


843 


844 


S45 


846 


191 


tion line east and west in Section 21 and southeasterly 
to the east line of the section, that is an actual survey. 
I got the line of the river from Mr. Woods’ notes. He is 
now dead. He was mining engineer and in that work 
surveyed for the Carbon Coal Company at that time. He 
was not a public official that I know of. I have taken 
his notes by his latitudes and closed his points and found 
they are right; assumed them as mine. I would assume 
the intermediate points were right. Yet, certainly it is 
an assumption. I never heard of the slough being called 
anything else but MeCormick’s slough. 'T’o my knowledge 
it is the only slough on the west side of Section 21 of 
any considerable size. [ did measure the meanders of the 
east bank of it. I got the west bank from part of the 
work I did for the Brown estate, at one time making a 
survey for the Brown estate and Captain McCormick. 
I got the west bank by meanders. I did not survey the 
south bank or the west bank. That is probably sketched 
in there. {I computed that there was in Sections 23, 22 
and 21,676.73 acres of land. Those are the totals of the 
parts contained on this plat; in Section 21, 446.03 acres. 


Q. I wish you would give me your details, give me 
the amounts and your descriptions of the land. A. The 
west half, northwest quarter, 21, 10.38 acres; the east 
half, northwest quarter, 64.74; west half of the north- 
east quarter, 33 acres; east fraction of the northeast quar- 
ter, 69.24 acres. It appears on this plat. JI have been 
informed that those two tracts are involved in this suit. 
I don’t know as they are. I am simply making the meas- 
urements if they are. I make them 69.24 acres; the east 
half of the southeast quarter, 52.54; west half of the 
southeast quarter, 81.5 acres; east half of the southwest 
quarter, 82 acres; west half southwest quarter, 52.63 
acres; total, 446.08. Section 22, 39.95 acres; that is in the 
eastern part, southeastern. There is not any more in 22 


84:7 


848 


&49 


850 


192 


to my knowledge. The west half of the northwest quar- 
ter of Section 23, 19.23 acres. The river is not contained 
in the computation. J did not deduct the river, for I did 
not compute it. I left out the river. I made no survey 
of the water, only of the land to the water. That em- 
braces so many acres. I was informed this land in ‘this 
suit in Section 238, north of the river, was as I have shown 
it. I have simply located it there and left that to be de- 
termined, Another tract of 21.25 acres, a total in the 
northwest quarter of 40.48 acres; the west half of the 
southwest quarter, 18.41 acres and 1.10 acres, a total of 
19.51 acres. That 1.10 acres is right by the center of 
the section; west half of the southeast quarter, 44.88 
acres; east half of the southeast quarter, 39.62 acres; in 
Section 24, 5.75 acres, a total of 691.73 acres. I have not 
computed the acreage of the bayou. 


IT made a survey of the shore line of the bayou. My 
field notes are at home. I made that survey in October, 
1892. I did not run the lines along the north edge. I 
got the point where it meandered. It is not a very ir- 
regular line on the north shore. We sketched it; assumed 
it that way from one point to the other. Did not take in 
any of the Illinois and Michigan Canal as shown on this 
map only in getting a start south from the section cor- 
ner, which is in the canal, from a point north of the 
canal. 


There is none of the 17.74 acres of land in the north 
part of the northeast quarter of Section 21 in the canal. 
These parallel lines, about 125 feet, I would judge, or per- 
haps 100 feet apart, adjacent to the canal and running 
parallel with it, are supposed to be the ninety. foot lines. 
I think they scale that. T surveyed the bridge and road 
on the west part of Section 21 in making the survey for 
Brown and Captain McCormick and just put it in the 
map. I don’t know the width of the road. It may or 


0 8) 
En 
— 


853 


854 


193 


may not scale correctly, just merely the dotted lines. As 


nearly as I could indicate it, the bridge at the north of 
the road on the west sidé of Section 21 was sketched by 
me. I did not measure the width of the bridge. I simply 
got the length of it. I did not survey it. It is a 16 or 
18 foot road, I don’t know which. I have not attempted 
to show any elevations of any kind on this. There is 
nothing shown or disclosed by this map other than the 
Brown survey and some of the bridges which there ap- 


2 pear. I don’t remember whether the government ever 


meandered the McCormick slough, although in the gov- 
ernment field notes the distance is given across the bayou. 
It might and might not indicate a meandering. The dis- 
tance is given, of course, but whether they have mean- 
dered back or not, I don’t know. I don’t know, in the 
original filed notes, whether they include or exclude the 
bayou. The banks of the Illinois River have been mean- 
dered. The bayou on the northeast quarter of Section 21 
has not been meandered to my knowledge. It may have 
been and may not. There has been filed notes excluding 
from the field notes of this county the [linois and Michigan 
Canal; that was at Lockport; not to my knowledge have 
they been filed in this county; I never saw them. 
The two circles appearing with marks such as 22, 23, 27 
and 26 are the corners of the several sections. And where, 
in the center, I have a central figure, such as 23, with a 
circle around it, that indicates the center of the section. 
In any of my computations [ have nothing for the 
Tilinois River. Or on the [llinois and Michigan Canal, 
or any of the bayous or sloughs, or the Illinois Central 
Railroad right of way, nor the C., B. & Q. right of way, 
nor anything south of what I have designated as the high 
water mark. I found on these lands spoil banks. I did 
not indicate them on the survey. I don’t recall but one. 
That is at Jones’ shaft. I don’t know anything about the 


896 


858 


194 


dimensions of them except from recollection. I have 
made no measurements that would indicate to my mind 
how much of this land was occupied by the spoil banks. 
The early part of the year ’89 was wet. I made my first 
survey in October, 1892. Then there was mostly weeds 
and willows. It was a wet season. In 1895, part of it 
was planted and a large part of it was plowed; that is my 
recollection. I refer to the land lying between the Me- 
Cormick slough and the Illinois River. I mean to the east 
of McCormick slough, also west of it; west of it is the 
Brown land, Right within the following day or day after 
I made a survey for Brown. And the part between the 
slough, going easterly towards the river, is the land that 
was involved in this proceeding. At the time we were 
there they were plowing and planting is my recollection. 
July 16th and August 22d we were making quite an ex- 
tensive survey there. We were on 23 and 26. The corn 
was over north of there, over in the bottoms; just remem- 
ber seeing corn generally in the bottoms. When I made 
the survey on the 8th of November I found corn there. 
My home is here in Ottawa and has been for a number 
of years. When I would be down on this land it would 
be in the pursuit of some business. This survey has been 

made for the La Salle County Carbon Coal Company. 
The defendant objects to the admission of the plat 
for the reason that no proper foundation has been 

laid; objection overruled; defendant excepts. 


Witutram A. Means, a witness for the plaintiff, being 
sworn, testifies as follows: 


Direct Kxamination by Mr. O’Conor. 


My name is William A. Means. I live in Peru. I am 
forty-four years old, last May. Lived in Peru forty years. 
J mean Peru, La Salle County, Illinois. My business is 


859 


860 


861 


195 


insurance and real estate; principally in life insurance. I 
live on Center street at the present time. It is the first 
street on top of the hill above the Peru depot. Water 
street, from the May’s corner, May’s lumber yard corner, 
down through the business district, is right on the edge 
of the river. The C., B. & Q. is between the street and 
the river. Center street was formerly my home. I lived 
there a number of years, when I was a boy and at the 
present time I room there. My home in the meantime 
was on Second street, Peru. J have an acquaintance or 
knowledge in relation to Section 21 that hes south of the 
Illinois River. In relation to this part of Section 21, 
shown on the map there, I was very well acquainted with 
the land. The conditions of Section 21 from 1892 to 1904 
and since that time have been more or less acquainted 
with the condition of the land. In the year 1892 it was 
worked hy my father-in-law, Samuel Waugh. He died in 
1903. He worked the land over twenty-five vears, to my 
knowledge. He had partners at times and various men 
working for him. J was there as the boy. Grew up there 
and we boated over there and going across the river I 
was familiar with the land from the time I was ten or 
twelve years old. We used to go there a great deal in the 
summer time, swimming, as boys. I refer to Section 21 
on the edge of the river by Peru. At times went in on 
the section. And we would fish in that so-called Mud Cat 
Pond. It is very rich farming land. That is, the rich, 
black soil. My knowledge goes back in the ’80s as to the 
uses to which this land was put. That land has been used 
in raising corn. 

Mr. Cuirerrretp: Wait a minute, if you please. I ob- 
ject, if your Honor please, on the ground that the time 
inquired about is too remote. 


The Court: I think I will let him answer. 


863 


865 


196 


Mr. O’Conor: JI will give you some limitation, Mr. 
Means. 


The Court: It was in the ’80s, I understood you to 
say. 

Mr. CuiverFienD: ‘That is the time I object to. 

A. Back to the ’80s. 

Mr. O’Conor: All right, we will get down closer. 


Q. Starting in the year 1890 down to the year 1900, 
do you know to what use that land was put? A. To 
raising corn. 

Samuel Waugh worked the land through his son. His 
son managed the property. Mr. Waugh was the lessee. 
From, 1890 down to 1900—well, from 1890 to 1893, I was 
over there occasionally each month. From 1892 to 1900 
I was over there very frequently, with my wife and fam- 
ily. She was over there a great deal. The folks went 
back and forth constantly. I was over there nearly every 
week from 1892 to 1903 and 1904, during the time my 
brother-in-law was living there. From the year 1892 
down to the vear 1900 this land was used for raising corn. 
I think there was between 375 and 400 acres all told 
and probably 85 per cent. of that land was cultivated 
for corn. There is a piece of land east of that, a frac- 
tional piece, south of the river and also a 40 west of sec- 
tion 21, which was generally one piece. The corn was 
planted at different times of course but it was one field 
of corn. Why, the land produced at least 60 bushels to 
the acre over there; 60 or 65 on most of the land. I would 
not say I am enough of a farmer to make a close esti- 
mate, but I ean tell a good field of corn when I see it. 


S66 Yes, it was good corn. In 1892 the entire valley was 


flooded, section 21 included. It was due to excessive rain- 
fall during one night in May. There was not anything 
raised that year on section 21; very little was raised on 


867 


S68 


869 


870 


197 


the hill land, on account of the land being saturated. Rail- 
road tracks washed out, and all that sort of thing. Sam- 
uel Waugh continued to farm this land in section 21 
within the limits I have mentioned, down to the time of 
his death. He died in September, 1903. During all of 
these years I have been familiar with the Illinois River. 
I would see the [linois River in and about through there 
almost daily; have fished in the Illinois River; used to 
swim in it; boat ride around there. I remember the 
announcement was made that the water of the Sanitary 
District was turned in at Lockport and I remember there 
was a slight raise in the river and we watched the effect 
on the river at that time. Since the turning in of this 
water the Illinois River has undergone changes. Accord- 
ing to my best observation along the river, in that neigh- 
borhood, I think the river is four or five feet, on an 
average, higher at all seasons of the year than usual, 
than it was before the water was turned in. It is pretty 
hard to say how high the level of the land is above the 
surface of the river. There are high spots and low spots 
on section 21 and I don’t know exactly how to answer 
that question. I am not a surveyor. Since 1900 I have 
been over there or seen it either going along it or going 
by it, or otherwise. I have been over there several 
times a year during those years, at all seasons of the 
year. 1900 down to the present time I have observed 
the condition of section 21 with few exceptions. I have 
been out west traveling around quite a bit, but as a 
general thing I kept notice of the river in relation to 
that land over on the south side. During those years 
I have actually been on section 21, on an average a couple 
of times during a year, during the entire time. Well, 
since the year 1900 there has been a full crop of corn 
raised on that portion of section 21. The river has raised 
in the spring and water has laid on that land until it 
was too late to plant a crop and portions of section 21 


S71 


198 


have been badly washed out by the current that runs 
through from the river across to the so-called slough. 
The river comes up over the bank. The main current is 
through this way. A great portion of the high water 
going around this way and a great portion of it going 
to the old slough; makes a short cut; the old slough across 
to the south bluff here. I think the river has been high 
at times during the years ever since the year 1902; nearly 
every year there has been a flood and that condition pre- 
vailed over there on a portion of section 21. 


Mr. O’Conor: Q. Now, tell the jury in your own way, 
Mr. Means, what effect, if any, the increased flow on the 
river that you have described, in all its detail, insofar as 
you know it, has had upon section 21? 

Objected to by the defendant as assuming’ there has 
been testimony as to the increased flow of the river. 


The Court: Let him answer the question. 
Defendant excepts. 


A. It has been impossible to farm more than a few 
spots here and there over that section 21. 

Moved by the defendant to strike out the answer as 
being a conclusion of the witness and not a de- 
scription of the condition. Motion overruled. De- 
fendant excepts. 


Well, instead of there being an almost continuous field 
of corn over there, the corn has been in patches and high 
spots. The low ground has been uncultivated and cov- 
ered with a dense growth of weeds and vegetation that 


73 grow in water. I think there has been a difference in 


that regard sav from the year 1902 down to the present 
time. 

Defendant objects to the comparison being made by 
the witness. He can state conditions now and let 
the jury draw the comparison. Objection over- 
ruled. Defendant excepts. 


874 


876 


ies, 


The water has laid on the land until it was too late 
to plant a crop in most instances. 


Motion by the defendant to strike the answer as not 
being responsive to the question. Motion overruled. De- 
fendant excepts. 


Prior to the year 1900 section 21 was put to use dur- 
ing the winter, grazing cattle and horses. From the year 
1890 down, we will say, to the year 1902 this land was 
generally used for grazing cattle and horses by my 
father-in-law; the cattle grazed on corn stalks in the win- 
ter time. As a rule, during the vear 1890 to 1900, it 
was possible to leave the cattle out on section 21 to 
eraze about the end of November; late in November until 
early in the spring; when the spring snows would melt 
away and the melting snow would make the ground 
muddy and sticky it would make it necessary to guide the 
horses and eattle off. 


Mr. O’Conor: Q. Now, since the year 1902 down to 
the present time, what has been the condition of that 
land, if you know, during the winter time or winter 
months, generally so-called? 

A. Well, from 1893 until 1903 it was generally un- 
safe to risk cattle or horses on the bottom lands on ac- 
eount of the raise in the river. 


Mr. Curperrretp: Move to strike it as being purely 
the conclusion of the witness instead of a description of 
facts from which the jury can draw the conclusion. 

The Court: I think I will overrule the motion. 

Defendant excepts. 

The Court: It is not improper for a witness to use 
that form of expression in a matter of common knowl- 
edge about horses and cattle being pastured, if he sees 
fit to use that. I think I will overrule the objection. 


Defendant excepts. 


878 


&79 


880 


200 


From the year 1902 on down the water comes up over 
section 21 during the winter. Last fall the river rose 
suddenly and covered the land during the entire winter 
until late in the spring. This winter, 1911—1912, it was. 
I did not personally keep any record as to when the 
river was over this land. 


Q. Now, generally speaking, if that river overflows 
this land in the fall months, or winter time, about when, 
generally, does it come in over the land? 


Mr. CurperFIELD: Object to it as argumentative and 
suggestive. 
Objection overruled. Defendant excepts. 
A. Inthe years I mentioned in the preceding answer— 


Mr. Cuiperrietp: Move to strike the answer as not 
responsive. 

Motion overruled. Defendant excepts. 

Q. 1890 to 1900. With reference to that period of 
time, as to when the water came up and in relation to 
the time, from the year 1902 down to the present time, 
has there been any difference as to when the river actu- 
ally came up and came over the land? A. There has. 


Mr. Cureerrietp: I wish to object. The witness an- 
swered before there was an opportunity to object. I 
object to the witness being called upon to make a com- 
parison or to give a conclusion. He can state conclusions 
and the jury can conclude from that. 

Objection overruled. Defendant excepts. 


From .the year 1902 down to the present time I 
don’t think this land has been generally used. 

IT have seen this land during the winter months from 
the year 1902 down to the present time. 

The Court: Just wait a minute. It may be that the 
statement of this witness that it was unsafe to feed the 


881 


) 


201 


horses and cattle, from some point of view, might be sub- 
ject to criticism. I think I will exclude that. I will ex- 
elude that statement. 


Very generally it has been put to very little use dur- 
ing the winter months from the year 1902 down to the 
present time. 


Mr. CureerFreELp: I object to it as being purely the 
conclusion of the witness and not responsive to the ques- 
tion. 

Objection overruled. Defendant excepts. 


I think there was one year since 1902 there was cattle 
in there quite a portion of the time during the winter. 
I don’t recall what year it was. Nearly every winter, from 
the year 1902 down to the present time, there has been 
more or less water over the land. Since 1902 I have 
noticed a different effect after a rainfall, in the actior 
of the Illinois River, than I did prior to that time. The 
river rises much quicker. That is, overflows its banks 
much quicker than it did before the year 1900. The river 
remains high enough to overflow the land for a longer 
period of time than it did preceding 1900. The water 
passes off now slower. I have been in the real estate 
business since 1908. I was, in a general way, in the year 
1900, acquainted with the fair, cash market eae of lands 
in the vicinity of section 21. 


Q. Now, what, in your opinion, was the market value, 
fair cash market value, of section 21 so far as I have 
referred to here and you have testified to it, in the year 
1900 prior to the 17th day of January? 


Mr. Cureerrretp: Objected to on the ground no proper 
foundation has been laid for the expression of opinion 
other than the mere conclusion of the witness that he 
knows. 

Objection overruled. Defendant excepts. 


886 


887 


202 


A. I think that portion of section 21, judged by the 
productiveness of the crops— 

Mr. CurperrieLp: Wait a minute. Object to that. It 
is not a question of judging by productiveness of crops. 
It is a question of the fair cash market value, if Your 
Honor please, that it would sell for in the market. He 
may take that into consideration, but that is not the test. 


The Court: I think I will let him finish his answer. 
Defendant excepts. 
A. $90 to $100 an aere. 


Q. What would be the fair cash market value of that 
land, Mr. Means, on the 18th day of January, 1900, after 


5 the turning in of the Sanitary District water, taking into 


consideration in giving your opinion all of the facts that 
you know at this time? 


Mr. CurprerrieLp: Object to it as being incompetent, 


irrelevant and immaterial. 
Objection overruled. Defendant excepts. 


A. I should say $45 to $50 an acre. 


Cross-Examination of the Witness Wiliam Means by 
Mr. Chaper field. 


I am 45 years old, the 25th of last May. I have been 
with the Illinois Zine Company for 14 years. Previous 
to that time I was in a bank in Chicago, when I was 
a young fellow, but since that time, since 1904, I have 
been a salesman on the road; real estate and insurance. 
When I was with the Illinois Zine Company I was a 
bookkeeper and assistant to the general manager for 
the last six years I was with the company. I was the 
general manager’s assistant. May, 1904, was my last 
service to the Illinois Zinc Company. I commenced about 
1890. After 1904 I traveled for my health. I was out 


&85 


GH 
ee 
CO 


890 


891 


892 


203 


two months; most of the time in the woods of Wisconsin. 
I have been located at Peru since that time. I have sold 
Portland Cement on the road about six months; that was 
in 1908. I was traveling constantly during that time. 
Would be away from home considerable then. I have 
been in the land business. I was in a bank when I was 
a youngster, in Chicago, from 1887 to 1890. Have been 
engaged in the land business more or less since 1908. 
In 1908 and 1909 I averaged a trip of about once a month. 
1 don’t necessarily assume to be an expert in real estate 
values. I would not say in giving my testimony that I 
was an expert. My principal business has been insur- 
ance business. I have not sold land in the vicinity of 
Peru. I have not dealt in land in that vicinity only in 
connection with my father-in-law and my mother. That 
is all the transactions I have had down near Peru. I 
have not had any real estate transactions in the vicinity 
of Peru. A few years ago there was a fraction of section 
21 sold at petition sale, you might say forced sale. Went 
around $70 an acie. I think it was some 10 or 12 years 
ago. | would not swear that the sale was conducted since 
1900. I don’t know exactly whether it was before or 
after 1900. In my expression of values I took into con- 
sideration the values of land lying adjacent to that land, 
that is farmable, that is subject to cultivation, to raise 
crops. I can’t say that I am basing my opinion as to 
the value of this land before 1900 upon any actual sale 
or transaction. It is based on general information re- 
garding relative values of land. I don’t know of any 
actual transactions. I know of a refusal that was made 
on a trade; not of my own knowledge I don’t know of 
any actual sales. I don’t know of an actual sale. My opin- 
ion, since 1900, is based on the same assumption as _ be- 
fore; based on a refusal of a trade; not on an actual 
transaction. I don’t take into consideration, in my ex- 


Bo3 


S96 


S97 


204 


pression as to values since 1900, any actual sale. This 
land was untiled land. Pretty fair drainage over most 
of it; natural drainage. ‘There was no tile in this land. 
‘There was never a foot of tile on this land. There was 
no improvement on section 21. There was never a house 
or shed or building of any kind on that portion of sec- 
{ion 21. 


Q. Was it ever possible at any time, during the 25 
vears that your father-in law occupied this land, to build 
a house upon those premises and have it remain there 
from one season to another? A. Well, it would not re- 
main permanently. It might remain from one season to 
another durimg a period of four or five years, according 
to the average floods over the land. 


I think there was a number of seasons when the water 
failed to get over that land during the winter months. 
Generally there was a January thaw and February rains 
in the river; sometimes it would come over the land 
badly and other times not badly but it was an unsafe 
proposition to put buildings on that land. It was the 
kind of land on which buildings could not be built. 


Q. Isn’t it true that back in 1890 that the prices of 
the very best La Salle County lands, taking the best land 
that you could find of all La Salle County, was not to 
exceed $100 an acre? A. That was a fair average price 
for the lands. 


Q. Of all the lands of La Salle County, the best agri- 
tural lands? <A. Yes, sir. 


T don’t know of any lands in the vicinity of this land 
during the time which I mentioned just prior to 1900 sell- 
ing at from 20 to 30 and 40 dollars per acre. I could not 
name the grantors or grantees or anything of that kind, 
any of the details of the transaction. I did not take into 
consideration in my statement that this land is worth 


898 


899 


900 


205 


from $45 to $50 per acre, the fact that it is underlaid in 
its entirety with a fine vein of coal. The coal is not 
taken into consideration at all, 


(. Now, when you take into consideration the coal, 
what would you place as the value of this land? A. I 
have sold 200 acres of coal adjoining section 21 for $30 
an acre for the coal land. 


@. When? A. In 1894. 


(. Oh, yes. What do you say is the value of the coal 
per acre now? A. That particular coal is held for a cer- 
tain purpose. 


@. You will answer my question, please. A. Well, 
I would not state that there is any—would not state from 
my own knowledge there is any advance in the price. 


Q.. Don’t you know, as a matter of fact, that coal lo- 
cated as that coal is could not be bought for $100 an acre 
today? A. I don’t know that of my own knowledge, no. 


Q. Isn’t that your opinion as a man engaged in the 
real estate business? A. Well, I would say that the par- 
ticular piece I referred to could not be bought for any 
price. 

@. Iam not talking about back in 1894. I am asking 
you if the coal located in this section at the time you 
attempted to fix the value, taking into consideration all 
that you know now? <A. Well, I suppose $100 would 
be considered a low price for it. 


Several hundred head of stock has pastured on that 
ground at different times. I would not say they were 
fattened, but they were fed on the land. They ranged the 
land and got the corn stalks and were fed whatever it 
was necessary. They were fed whatever it was neces- 
sary to fatten and sustain them. They were allowed 
to range the river bottoms. They were fed whatever 
was necessary to fatten them. None of these cattle could 


901 


903 


904 


905 
906 
907 


206 


be stabled or shedded on this land before 1900. They 
were allowed to run wild down there. It was necessary 
at different times during those winters, when the river 
rose and would come on a part of this land, to drive 
the cattle back to the high land; at those times the cattle 
had to go. 


Court adjourned to Thursday, November 14th, 1912, 
al UO Ag Ms 


November 14, 1912, 9 o’clock a. m. 


Cross-Examination of the witness William A. Means Con- 
tinued by Mr. Chiperfield. 


I was over there as a boy but after I was married I 
was over there frequently with my father-in-law. In 
a general way I knew the land for 25 years. My father- 
in-law did not live upon these premises. He did not live 
there in the true sense of the word. Well, they stayed 
over there, the family did, after they came down from 
Chicago in 1893. There was never a house on those prem- 
ises. He did not live on section 21. Yes, there was a 
road leading to section 21. Up to a few years ago there 
was not a public road except along the south line of 
section 21. There is a road now. There is a road that 
leaves the public highway. It was established, as I un- 
derstand it, by the Carbon Coal Company and Brown. 
The public highway comes along the west side of the 
Brown land. There has been a road established and my 
understanding was that it was an open road; that it is 
an open road now; about the line of that 80. It crosses 
the slough. There is a culvert put in there. There is 
not a public road leading to this land. We swam on the 
bar in the upper part of the slough. I would judge the 
water was four or five feet deep where the word ‘‘21”’ 
in the circle is, before 1900. I should say it would be at 


908 


909 


910 


911 


912 


913 


207 


least an average of 10 or 12 feet deep in there now. That 
is my off-hand guess. I would not swear to it. It has 
been thirty years, I guess, or 20, since I have been there. 
I am simply testifying from judgment. It is just a guess. 
I haven’t been over there. If it should transpire that 
that slough was now about four or five feet deep my 
guess would not be a good one. I think, say along about 
1890 or thereabouts that I commenced to observe these 
premises more closely. I knew these premises and the 
crops that were raised there pretty well. In fixing the 
value [I took into consideration all that I knew about 
those premises, productivity and returns and the market 
value and all those sort of things; rental and everything 
of that sort. 

Q. Your father-in-law, Mr. Waugh, paid $500 a year 
for those 450 or 60 odd acres, didn’t he? 

Objected to by the plaintiff; objection sustained; de- 
fendant excepts. 

In placing a value upon these premises I took into 
consideration, to a certain extent, what they did rent 
for. The rental was $500, cash rental per year; con- 
tinued up to the year 1900. After 1900 he didn’t rent the 
premises. He cropped it under another arrangement. 
There was no fixed arrangement as to rents after that 
year. He didn’t rent the premises regularly after 1900. 
There was at least one year between 1900 and 1902 or 
1903 that the entire bottoms were rented under the old 
arrangement of $500-per year, and I think it was the 
year 1901.- I think it was 1900 and 1901; for two years. 
1902 was a very wet year. It was a flood year. Nothing 
was raised on the bottoms. The water came up 
to high water mark. During that flood year Mr. 
Waugh was apprehensive regarding the conditions of the 
land because of the flood that year, and it was apparent 
that no crop could be planted, Then he died in 1903. 


914 


915 


916 


Aly 


sale 


sabe 


208 
After he died Mrs. Waugh continued for a while. Before 


1900 the river got very high at times. Peru sits on a 


bench, or is high on the bluff. Water street 1s on a sort 
of first bottom or bench along the river. I remember 
one year when I was a small boy the water was over 
the street. I have seen the water spread from bluff to 
bluff at Peru. There would not be high water every year. 
I mean high water upon the street. There were freshets 
every year from melting snow and the spring rain and 
the water got high every spring as a rule. It would 
spread over the bottoms and would make a very wide 
river. At such times the boats that pled around the 
river there would go across the bottoms. 


I have hunted ducks all over Section 21 in a boat. 
Put decoys out there anywhere where there were clumps 
of willows; and shot ducks practically all over the place. 
I also have seen very low water in the river at that point. 
I have seen the river when it was low and there was a 
skum, sort of a plant, on the river. They were very com- 
mon. At that time the current was very slow. Along 
the borders of the river and in the ponds on Section 21 
were favorite fishing places. When the river was high, 
extending from bluff to bluff, it was probably a little un- 
der a mile in width. Under ordinary conditions the river 
is 250 or 300 feet wide at that point. There is a well 
defined bank on the stream on the Peru side of the river. 
There is a made bank just to the west of the point where 
the word ‘‘Illinois”’ appears, the bank is quite high right 
on the edge of the river. Opposite that point there was 
a low road running to La Salle. There was an embank- 
ment there at least 15 feet below the low water of the 
river. That was the old Water street. When the water 
would rise it would be up in Water street. The water 
would be shunted or deflected over to the lower land on 
the other side. There was a wash across this land. There 


921 


922 


209 


has always been a wash across this land in high water, 
it seemed to be through the old slough down towards the 
end of the south bluff of the river. It went around 
through an old channel there. As soon as the water got 
high it swept across the field and started to cut in through 
the other way. The current was slower in those days 
than it has been since. Since 1900 the current is consid- 
erably swifter than it used to be. The current is prob- 
ably twice as swift as formerly. There is a constant 
steady flow all the time. I wouldn’t say that the current 
is twice as swift now under the old slough bridge, but it 
is noticeably swifter. They rip-rapped the bottom road 
to hold it. I think that before 1900 the crops would go 
maybe 60 bushels an acre. I base that statement upon 
the statistics given by Mr. Waugh in family councils, re- 
garding conditions there. I never farmed bottoms my- 
self and I am testifying nearly about what has been told 
me in regard to it. I have no other knowledge on the 
subject. I assumed that what was told me was true. 
That is the sole basis of my information. I learned 
through the newspapers and announcements made re- 
garding the opening of the Sanitary District. There was 
not any noticeable change in the river, not an immediate 
change. During 1900 and 1901 the change was very 
slight and in 1901 we had an extreemly dry year, dry hot 
year, and the river was very low in the spring and sum- 
mer of 1901. For the first two years after the Sanitary 
District was opened there was a low condition of the 
river; without reference to what was the cause, that is 
the fact. J believed that from information I received 
through newspaper rumors and other information that 
eame from men who had inspected the controlling works, 
that they did not have the full flow of water coming down 
the river. I don’t know in actual cubic gallons or inches 
what the flow coming down at that time was, I have no 


210 


definite information on that subject. I only know that 
there were rumors that they were not. allowing the full 
legal flow to come down the river. It was common news- 
paper report and common report from people who had 
made a little investigation. It was common knowledge. 
It is true that every time it rains they will say that they 
are opening the Bear Trap Dam and I think they do. 
That is my opinion, that every time there is a rain in 
this valley or any raise in this river, that they open the 
923 Bar Trap Dam. I am not guessing on that subject for 
the benefit of this jury. [am basing my opinion on what 
is actually flowed, from talking to people who have pre- 
tended and claimed te be posted, who were reliable men. 
The river is rising now. It is quite high at present. I 
noticed it this morning. There has been a rain within 
the past two days. I think that the opening of the Bear 
Trap Dam and the rains within the past two or three 
924. days accounts for the rise in the river. I couldn’t swear 
positively that there has been any change in the flow on 
the part of the Sanitary District. I remember that in 
1901 the river was remarkably low. I couldn’t give the 
absolute dates. There was no perceptible rise in the 
925 river in the years 1900 and 1901; 1902 there was, because 
of the great rains; 1903 there had been considerable snow 
and in March it turned very warm. I remember that in 
March that vear the roads were impassable over the bot- 
toms. They were covered with water and we had to 
drive away areund a very considerable way to get to the 
farm house on the place south of Section 21; and the 
spring months were quite wet that year, as | remember; 
and when the heavy snows melted the river was very 
high. I couldn’t say definitely after the water got set- 
tled in May and June, 1903, that the river was higher 
that year than in correspondng Mays of previous years. 
‘926 Taking the year 1904, I don’t think that the river was 


211 


higher in May than in any previous corresponding May. 
The bottoms were not overflowed during the summer 
months. ‘They raised a crop on this land in 1904, a good 
erop. | am not absolutely positive as to there being a 
erop in 1905, There is a corn crop on the land this year, 
927 I suppose. I should say that there is in the neighbor- 
hood of 165 to 170 acres planted in corn this year. I 
would say about 50 per cent. of the land is in corn this 
year; not to exceed 50 per cent. I should say about 200 
928 acres of this land is in corn this year. I don’t know the 
exact acreage of Section 21. My estimate was that there 
was 375 to 400 acres of land available for cultivation; 
and I think one-half ef it is under crop this year. I have 
not been there to examine it at all to tell whether it is a 
good crop of corn or not. It looks like a good crop from 
929 across the river. The corn seems to stand well. I don’t 
think they are done picking the corn yet. I think they 
are just about done. I have not seen any of the corn 
raised there this year. They had a good crop in sight 
last year on this land. It was mature. The river came 
up and destroyed a great deal of it. I never saw them 
pick corn in boats on this land. I saw them pick some 
930 corn last year on the ice. I have heard of cattle being 
drowned on Secticn 21 before 1900, and being caught 
there in the slough and swamps. I think since 1900 the 
river does not go down so quick. During some years 
the water stays on the land pretty late in the summer. 
There always has been and I presume always will be a 
difference in years. Srnee 1900, generally speaking, the 
931 water gets off the land before the 20th of June. It isa 
very porous soil. When the river falls sufficiently the 
land drains off very quickly. The land does not dry out 
or bake like upland does. There is always sufficient wa- 
ter by capillary attraction from the water under the land. 
932 T never knew of a drought on this land. ‘The land seems 


934 


936 


938 


212 


to divest itself of the water very speedily. After the 
water was off the land two or three days you could plow 
it. I think there is some uncertainty in regard to using 
that land for corn at the present time. I am not a 
farmer. I am fairly well posted regarding farming con- 
ditions. Corn is the crop that takes the most time to 
raise, for the growing period, in this section of the coun- 
try. It requires approximately 100 days for growing, in 
a favorable season. In raising millet and small grain in 
the bottoms, weeds grow there very profusely and the 
grain crop would be smothered out by the weeds. You 
will also have a great deal of trouble with weeds along 
a river bank, which is against raising that kind of a crop. 
I don’t know how long it takes to mature millet. I don’t 
know anything about a crop of soy beans, nor millet, nor 
sweet corn for canning purposes. That has been dis- 
cussed in a general way, but I don’t know anything defi- 
nite about it. They have raised some garden crops over 
there in the bottoms and they grow all right. They have 
raised pop corn over there and the land, the soil, would 
he available for the raising of vegetables of all kinds. 
They raised sunflowers over there for chicken feed. I 
have observed this year that they are raising the corn 
for silage purposes. It seems to be more and more of a 
general proposition this year than ever before. I should 
say that it takes 90 days to raise corn for silage pur- 
poses. I should say it takes 90 days to raise corn for 
that purpose. My answer is a pure guess. I don’t know 
about it positively. There would be no trouble about 
raising corn on this land and putting it in a silo. The 
question would be to market the silo. There is nothing to 
prevent anybody who has cattle from raising corn for 
silage and feeding the silage to the cattle. There is a 
ereat deal of that being done this year. I think this land 
will raise turnips. If it was not for the overflow and the 


940 


941 


943 


944 


213 


risk of destruction of the crops on the bottom land the 
land would be very valuable for any otf these purposes. 
IT don’t think there has been any serious overflow be- 
tween July Ist and November Ist any year since 1902. I 
don’t think that there has been any overflow during any 
summer months. 


(). I will ask you if it is not true that on the 18th of 
February, 1911, that there was sold land similarly situ- 
ated just across the river, land fully as low as the land 
involved in this proceeding, 25 acres, for $2,556, and that 
there was reserved from that sale all minerals and the 
road and a pipe line and other reservations; that being 
more than $100 an acre for land similar to this? 

Objected to by the plaintiff; objection sustained; de- 
fendant excepts. 


Defendant offers to show by this witness that on the 
18th day of February, 1911, there was sold land similarly 
situated to the land in question, Section 21, and concern- 
ing which the witness has expressed an opinion, twenty- 
five and fifty-six hundredths acres of land for $2,556, and 
that from such sale was reserved the minerals, the road, 
and a right of way for a pipe line, which ran across the 
same. 


Deseription of the land read as being in Section 14, 
township thirty-three, north of range 1, east of the Third 
Principal Meridian. 

Objected to by the plaintiff; objection sustained; de- 
fendant excepts. 


Re-direct Examination of the Witness William Means by 
Mr. O’Conor. 


The place where Samuel Waugh lived was on Section 
28 and was within about five hundred feet of Section 21. 
When the river was low we would go on the bottom road 


949 


946 


O47 


~ 


948 


949 


214 


to Mr. Waugh’s place, crossing the bridge over the [lh- 
nois River at Peru, following south along that road and 
across the slough bridge. The house was located on a 
bluff or a bench on the side of the bluff. Up to recent 
years there was a heavy strip of timber along that slough 
on the west side of the land. At one time, while Mr. 
Waugh was renting this jand from the La Salle County 
Carbon Coal Company, Gecrge Brown was in partner- 
ship with him. That was about ’94, I think, and then 
they dissolved. During the time that Brown and Waugh 
rented the land they eut off the timber; principally in 
the southeast corner. I don’t know how much timber 
they cut off. There was a road built upon Section 21 
since the year 1800. I am not positive of the vear, but 
T think it was since 1900; entering across the pond to the 
center of the land. The road was built from the turnpike 
running south from Peru. I think it was pretty nearly 
in the center of the section. There has always been a 
broken, rough road there, There wasn’t any established 
road; going in there from the south of Waugh’s place 
the road was a beaten path. There was also a road built 
in there about 1905. The Carbon Coal Company had 
some grading done there and small trees were planted 
along the east side, with the idea of holding the road. 


Q. In giving your valuations on yesterday, Mr. 
Means, if I understood you correctly, you said that the 
land to-day was worth from $40 to $50; is that correct? 

Objected to by the defendant as not being re-direct 
examination; objection overruled; defendant ex- 
cepts. 


Q. * * * Yo what parts of the land did that valu- 
ation apply? A. Why. to the land that is cultivatable. 
That is above—on the high ground. * * * the land 
that is overflowed is considered worthless, a lot of it. 

Motion by the defendant to strike out what he con- 





991 


215 


siders worthless; motion overruled; defendant ex- 
cepts. 


Re-cross Hxamination of the Witness Wiliam Means by 
Mr. Chiperfeld. 


When I testified as to what the land was worth I left 
out the coal. 
Motien by defendant to strike the testimony of the 
witness upon that point; motion overruled; de- 
fendant excepts. 


Mr. CurperFieLD: Your honor, I would lke to be 
heard briefly upon that motion. * * * ‘There is only 
one test of value, if your honor please. The test is what 
was the fair, cash market value, before and after, includ- 
ing the entire estate. A man cannot take the surface 
and separate it from the rest and make a valuation on it 
in this kind of a suit. J merely want to call your honor’s 
attention, which doubtless you have already seen, as to 
the point I have in mind. I want to be fair on the propo- 
sition, but it cannot be possible to separate an estate and 
fix valuation in that way. 


The Court: I think I will adhere to my ruling. 
Defendant excepts. 


JosEPH GREINER, a witness for the plaintiff, testifies as 
follows: 


Direct Examimation by Mr. Butters. 


My name is Joseph Greiner. I live in Peru. I have 
lived there 44 years. I have farmed the biggest part of 
my time. I worked for a man by the name of Samuel 
Waugh, who had possession of the land in Section 21 
shown on this map. I moved from there 14 years ago. I 


955 
996 


957 


960 


961 


965 


216 


worked there four years. I had my family and lived over 
there up on the hill. 


I lived about half a mile up from the bottoms, south 
from the river, JI don’t know whether or not it was on 
Section 21. There was a road in there where I lived; a 
road past the house and running north and south for a 
mile. There was a house and farm buildings there where 
I lived. I think I was there about 1898. I think I com- 
menced to work there in 1894, in January or February. I 
think I moved there in February. The first work I did 
that year was to haul crops out of the bottoms. J am 
acquainted with MeCormick’s slough. It is on this land. 
It was there at that time. There was corn raised on this 
land at that time. They had raised a good crop the year 
before, a crop of corn. We started in on the prairie first, 
that year, planted the prairie first and then the bottoms. 
J think that was about the latter part of May that we 
plowed and got ready for planting. I think there was 
about 300 acres of land worked and planted that spring 
on Section 21. There igs pretty nearly 400 acres, I guess, 
of land there. ‘here was corn raised on all of it that 
year, except where there was timber. You could drive 
from one end of the corn to the other. It was planted 
in one piece and was cultivated to the river bank. The 
longest rows were 120 rods and we planted from east to 
west. The soil of the ground was in good shape the lat- 
ter part of May. It is a good sandy loam. I know about 
the productiveness of the soil from examining it. It was 


~ a good soil. I also have farmed upland. Bottom soil 


964 


will grow a crop quicker than prairie soil will. 
Defendant objects to the comparison; objection over- 
ruled; defendant excepts. 
I had nothing to do with any of the land there except 
the land in Section 21. We cultivated it three or four 
times that year. There was no overflow from the river. 


965 


966 


968 


969 


970 


217 


We had a good crop that year. They had a good crop 
each of the four years I lived over there. I mean by good 
crop, we had a full crop of corn. The crop would aver- 
age as high as 70 bushels an acre. We turned the cattle 
into the stalks. Mr. Waugh turned them in. We finished 
husking somewhere about Thanksgiving. The water 
never interfered while I lived there, in the four years, 
with this land. Cattle would remain there and feed all 
winter. There was only one winter I remember towards 
the spring that we drove them off. The water was ris- 
ing and the bottoms were pretty well eat out and we 
turned the cattle out onto the prairie. That was about 
February. JI was born in this country. I have an opin- 
ion as to what was the fair cash market value of this land 
in Section 21 in the month of January, 1900, before the 
Sanitary District of Chicago was opened. 

Objected to by the defendant on the ground that the 
witness does not show any acquaintance with the 
land immediately prior to that time; objection 
overruled; defendant excepts. 


IT think the land was worth at that time $100 an acre. 
Since January 17, 1900, the river is higher. It is four 
feet higher. I live nowin Peru. I have known this land 
and what has been growing on it since 1900. They have 
got half a crop of corn there. 


(). Where is it with reference to where corn used to 
be, used to grow there while you were there? A. There 
used to be corn all over it, on every bit of it, when I lived 
there. 

Motion by the defendant to strike out the answer as 
not being responsive; motion overruled; defendant 
excepts. 

The land is cultivated now in patches. I have not ex- 
amined the corn that is there this year. I go into these 
bottoms every fall. There is little good corn raised there 


co © 
——! 
Co bo 


974 


979 


977 


978 


218 


since 1900. Most of it is soft on account of not getting 
in there soon enough in the spring. I think that the fair 
eash market value of the portions of land where they 
have crops—where there is a crop this year on this land, 
I think it is now $25 an acre. J don’t think that the land 
upon which no corn is now raised, since January, 1900, is 
worth a dollar. 


Cross-Exammation of the Witness Joseph Gremer by 
Mr, Chiperfield. 


I have talked with the attorneys for the plaintiff in 
this case about the case. I talked with them yesterday 
about. 15 minutes and had spoken to them since the last 
witness left the stand. I was not advised as to what 
value the last witness fixed upon the land. I took into 
consideration that this land, all of it, is underlaid with a 
good vein of coal. I still think the land is worth nothing. 
The coal land may be worth something; I don’t know 
anything about coal lands. It is worth something if the 
coal is there. JI don’t think that the land is valueless if 
there is 3,500 to 5,000 tons of coal per acre under the 
land. 


Q. Don’t you know, as a matter of fact, that at no 
time since 1906 could that land have been bought for $100 
an acre? 

Objected to by plaintiff; objection sustained; defend- 
ant excepts. 


Probably the market value of this coal for coal pur- 
poses in 1900 was $100 an acre. I have given my opinion 
about the price of the surface of this land only as a 
farming proposition, and I did not take into considera- 
tion whether there is coal there. I know that the La Salle 
County Carbon Coal Company is mining’ in that vicinity. 
I know they have entries extending into this land, but I 


219 


don’t consider the question of coal. I am talking about 
it merely for one purpose, and that for an agricultural 
purpose. I don’t take into consideration any other pur- 
980 pose other than that simply for farming. I have not 
seen them hauling corn this year. They can’t haul a very 
big load. I know they have sideboards on the box for 
throw boards. I have not seen this corn come out. All 
I know is what I have been told. It is purely hearsay 
981 with me as to what they are doing in there. I have been 
982 over the bottoms this fall. I was there two weeks ago 
Sunday. I was on Section 21. In 1894 we planted about 
983 from 100 to 125 acres. There was somewhere close to 
400 acres in it all told. Last year it was all planted. All 
except a little timber land in there; I couldn’t say how 
much timber was there. The slough wasn’t planted in 
- 984 1894, nor the timber. The land down by the bend in the 
river only was planted. We planted that year the latter 
part of May and first of June. The water didn’t rise 
986 on this land every year. There never was a corn crib 
constructed on Section 21. JI don’t know why. There 
was some building on that land. I would run a chance 
of having a house erected on that land today. I think 
987 they could have raised millet on that land this year. 
Probably could have got it out. If millet would have 
matured thirty days ago they could have got it out, of 
988 course. It is now way past the time for cutting millet. 
They could have cut it this year. I think they could 
have got a crop out last year, of millet. I couldn’t say 
989 about other years. Sugar cane is not worth anything 
for feed, not that I know anything about. I don’t think 
you could raise much garden truck there. It would cost 
you more than the truck would be worth to keep the 
990 weeds out of there. Certainly, it would grow. I don’t 
know much about garden truck. I don’t know of any 
transaction in that neighborhood where any land has 


991 


993 


994 


995 


996 
998 


220 


changed hands for $25 an acre since 1900. I am merely 
giving my own idea as to its worth. If I were to buy that 
land J wouldn’t give any more than $25 an acre for it. 
T am just talking about cultivating it. I am not talking 
about what the coal is worth. I hauled crops from this 
land in 1894 for Mr. Waugh, to the Carbon Coal Com- 
pany. I think the river in an average season, is four 
feet higher than it used to be before the Sanitary Dis- 
trict channel was opened. *I don’t know whether there 
is any gauge on the La Salle Dam on Lock 15. I have no 
idea as to the depth of the water in the river at the pres- 
ent time. It is within the banks. Opposite this land 
about two feet below the land. It is not a time of low 
water. There is a good medium stage of water in the 
river. In the lowest water that I have ever known in the 
Illinois River, before 1900, it was four feet lower than it 
is now. I would say that the river was six feet at low 
water, lower than at present. I know nothing about 
gauge readings at La Salle at any time, nor what stage 
the water stood on the gauge at La Salle. I think the 
water stands four feet higher than it did before the year 
around; at extreme high water it is four feet higher than 
extreme high water was before the Sanitary District 
was opened, the year around, and at low water is four 
feet higher than it was before that time. I don’t remem- 
ber whether the Illinois River, in 1901, during July and 
August, was the lowest water ever known on the Illinois 
River. That was nearly a year and a half after the Sani- 
tary District was opened. I don’t know anything about 
the high water of 1892. Since 1900 the water from the 
river has got into Water street. Water street has been 
raised maybe a foot or two feet. Since 1900, the river 
has come within two feet of the present surface of Water 
street. I did say that the river at high water, since 
1900, has been four feet higher than the high water be- 


221 

999 fore that year. I said it because I know it was that way. 
The river at Water street has washed out the Q. tracks. 

1000 I have not observed the current of the Illinois River. I 
never did. I don’t know whether the stream is flowing 
swifter since 1900 than formerly. We used to be able 
to catch some fish down there. We are not able to now. 

1001 They couldn’t live in the water. That is what they tell 
me. 


Q. Don’t you know as a matter of fact, that at the 
present time the fishing industry of the Llinois River is 
ereater than that of all the New England states put to- 
gether? 

Objected to by the plaintiff. 

Mr. CureerFIELD: This man says that fish won’t live 
in the water and I want to follow it up, or have it stricken 
from the record, your Honor. 

Objection sustained. 


Mr. CurperrieLp: Then I move to strike out his state- 
ment concerning fish. 
Motion overruled; defendant excepts. 


1002 I don’t see where the fishing industry on the Illinois 
River is greater than it ever was before. I can’t see that. 
I have never seen any fish that have been killed by the 
water. They don’t stay long enough to die. They don’t 
stay up there long enough to die. I don’t know that the 

1005 water of the Ulinois River is purer and less foul and 
less odor than before 1900. I don’t say it ig not true. 


1006 Henry Ream, a witness called by the plaintiff, testified 
as follows: 


Direct Examination by Mr. O’Conor. 


My name is Henry Ream. [I live at Peru, Illinois. Have 
lived there since 1852. My present occupation is bank- 


222 


ing at the Peru National Bank; since 1883. The bank 
does a general banking business. I am president of the 
1007 bank. I have been president nine years; formerly was 
cashier of the same bank; since 1888. The bank is lo- 
cated on 4th street, on the bluff, on the hill in Peru, since 
1904. During that time the bank was located on Water 
street. Water street runs parallel with the Illinois 
River, the entire length of the town, almost. Water street 
1008 is possibly fifty feet from the river. I am acquainted 
generally with the bottom lands that lie south of Peru. 
The general level of the land in the bottoms is lower than 
the level of Water street. I was acquainted with the 
lands farmed there for a number of years south of Peru 
1009 by Mr. Waugh. That land hes lower than the level of 
Water street in Peru. Fourth street in the City of Peru 
is higher than Water street; I should judge about 15 or 
1010 16 feet. I live the first street on the bluff. I was ac- 
quainted with the uses to which the land in Section 21 
was put prior to the year 1900. You could see that land, 
standing on Water street in Peru, and you could see it 
gomg up the bluff from Water street to my home. You 
could see all of it from the bluff. I think that all of the 
land in Section 21 lying to the west of MeCormick’s 
slough was in cultivation. Corn was growing on it. It 
1911 was then under the care of Mr. Waugh. I was in the 
habit, in my banking business, of making loans on land. 
I was acquainted with the fair cash market value of lands 
located in the vicinity of Peru, in the year 1900, prior to 
1012 January 17th. I place a valuation on the land in See- 
tion 21 at that time at $100 per acre. Ina general way 1 
was acquainted with the condition of the Illinois River, 
prior to the year 1900. I have not been acquainted with 
1013 the condition of the Illinois River since 1900. I have 
seen the lands in Section 21 since 1902, from the bluff, 
and driven several times during the year past the lands 


992 


a el 


on what we call the Wall Road. The Wall Road is south 
of the iands in Section 21. The road would take you on 
the bluff on the south side of Section 21. I have noticed 
the condition of the land as to crops. It was partly 
1014 planted and partly in weeds. I think about one-third 
of it was planted. It was planted in corn. I think it was 
planted irregularly instead of being in square pieces. 


1015 @. What, in your opinion, would be the fair cash 
market value of that land in the year 1900, on the 48th 
day of January, taking into consideration the facts in 
relation to the Illinois River and the flow of the same, 
as you know them at this time? 

Objected to by the defendant; objection overruled; 
defendant excepts. 


Mr. O’Conor: If you have an opinion; just add that. 
Objection renewed; objection overruled; defendant 
excepts. 

1016 I think the value would be considerably less. I con- 
sider that land worth about $25 or $30 an acre, now. I 
refer to all of the lands in the bottoms, in placing that 
valuation, located on Section 21. I have been across the 

1017 lands and around the I[llnois River probably a dozen 
times a year since 1900. I have noticed the changed con- 

1018 dition of the river. The stage of water is higher. The 
water being higher in the river, I think has the effect of 
making the ground in the bottom lands appear to be full 
of water, soggy. 


Cross-Exammation of the Witness Henry Ream by Mr. 
Chiperfield. 


I have not been on the lands since 1900, for the pur- 
pose of making any investigation. I simply passed by 
them, seeing them as I passed by. I am judging of the 
condition of the land from the appearance of it only. It 


224 


1019 seems to have a wet appearance. Black soil has more of 
a grayish appearance, I think, when it is dry. I think I 
eould tell whether the soil is moist or not from the road, 

from the road to the land, the west line of it, is some- 
thing like four or five hundred feet. The Brown land les 
in between. I should say that anywhere in the month of 
September the ground looked dark and full of water. I 
couldn’t tell how many times I have been over there 
since 1900. I should say about a dozen times a year I 

1020 go over there. Ihave fished a great deal overthere. I go 
fishing in the fall in the slough and river, any time until 
it freezes up. I think I was fishing there last year, about 
the latter part of September. I-wasn’t particularly no- 
ticing the land at that time, and did not make any par- 
ticular observations. I don’t know that I ever made any 
particular observations of this piece of land. I don’t 

1021 know that they have been going in there with wagons 
and taking out the corn since 1900. I presume they have, 
though. I don’t know whether the wagons could go in 
there and pick corn. I am not interested in any litiga- 
tion against the Sanitary District, nor with the La Salle 
County Carbon Coal Company. I don’t loan bank funds 

1022 on land. I loan private money. We have a few loans 
as a national bank. We have taken some loans as late 
as 1911 to secure a debt. I was not generally engaged 
in the real estate business in about the year 1900. I own 

1023 some real estate myself. J don’t own any farm lands 
and did not in 1900. I cannot recall any farm lands 
changing hands in the vicinity of Section 21. I took into 
consideration, in fixing the value of the land at $100 an 
acre, that, at the time the land was producing a sufficient 
quantity of corn. That is, equal to the prairie land. For 
that reason I believe it should be valued at about the 
same. My opinion was fixed upon the basis of compari- 
son. I could not name any tract of land on the prairie 


225 


that in 1900 was worth $100 an acre, but I think 1t was. 
I think it was selling for at least $100. I can’t recall 
any land—upland—selling at that time, about 1900, for 
about $100 an acre. I knew that this was bottom land. 
There are no houses on Section 21. I don’t know whether 
it would be washed away if one was built there or not. 
I always knew that this land was submerged whenever 
the river rose to any considerable extent, and, under 
those conditions it would not be a very habitable place. 
T eannot recall that there were any fences there. I can’t 
recall of any other than a few corn cribs on the Waugh 
farm, right near the bottom land. As far as I know there 
1025 were never any buildings located upon Section 21. You 
eould not keep stock there the year around. I cannot 
recall of any cattle being drowned over there, but I have 
heard of it. J cannot recall the facts. I should say that 
with the conditions obtaining there that the selling mar- 
ket value of lands in 1900, for the bottom lands, were 
as good as the highlands. There was very little land 
sold there. I don’t remember of any land being sold for 
that price similarly situated and in the vicinity of Section 
1026 21. JI don’t know anything about the land being un- 
tiled. J had in mind the producing value of the land,. 
which was equal to that of, perhaps a little bit better 
than the high bluff land. I did not take into considera- 
tion in placing the value at $100 an acre that the land 
was underlaid with a high grade of coal. JI think that 
1027 is the fact. Coal has been optioned all over this coun- 
try for $10 an acre. I don’t know whether coal situated 
as it was under this land, adjacent to the City of La Salle 
was worth on the market, in 1900, the sum of $100 an 
acre. I had no occasion at any time to figure out what 
1028 an acre of coal is worth to anybody. I believe the thick- 
ness of the coal vein in that vicinity is something like 
three feet. It ranges from three and a half to five feet, 


226 


the second vein does. There are two veins of coal on 
this land. Taking the coal under an acre of land, it 
certainly was worth more than $100 an acre, but whether 
1029 it could be sold for that is a question I cannot answer 
you. [am familiar with the coal industry in that vicinity 
and it has reached a high stage of development and had 
in 1900, and La Salle and Peru coal was much in demand 
on the market. It was regarded as a high, splendid grade 
of coal. There was a market for all that coal that could 
1030 be mined and a demand for it. I never heard of $100 
an acre being paid for coal and I don’t know whether 
this land was worth $100 an acre for coal mining pur- 
poses. I can’t answer that. It is something that doesn’t 
come within my scope of knowledge to know whether that 
coal under the land would make it worth $100. I will 
say this, that I believe, taking out that vein of coal under 
an acre of that land, that it is worth it, taking it out 
and selling it. It would be worth a great deal more than 
$100. I am not able to answer whether lying as this land 
1031 does it would be worth that sum or not. I am not well 
enough acquainted with the conditions of the coal. That 
is the best answer I can make to that question. When I 
placed my value of $25 to $30 an acre on this land I took 
into consideration the agricultural prospects only. I 
considered the land as an agricultural proposition. From 
where I would observe the land on the bluff, from my 
residence, would be about a half a mile from the land, 
across the river bottom. My attention was not specific 
ally and closely called to this Section 21. I don’t know, 
from my house, or at the bank, where the boundaries of 
1032 Section 21 commence and end. I could not tell you 
now from this map where the outlines are. I could tell 
how far south it ran from my house. T could tell from 
the fact it runs up to the bluff, right to the bluff, and the 
dwellings attached to that farm, to the Waugh farm, are 


227 


on the bluff. They are up high. I could tell from my 
1033 house that the vegetation seen there was corn. I think 
it was corn every year. I cannot recall the crop of 1892. 
I could not state whether there was any crop in 1902 or 
whether there was any corn grown there in 1904. There 
were several years, off and on, there was no corn raised, 
on account of overflow, but I cannot recall the years. I 
1034 remember the high water of 1893, and that the water 
came up to where our bank was then located on Water 
street. I could not say how many times I remember the 
high water coming practically up to Water street before 
1900. I should say that Water street was five or six 
feet, maybe more, above this land. It might be 15 or 20 
feet. I guess it is higher, come to think about it. I 
would take the level of the street and compare it with 
the water level. JI guess it is higher than five or six 
1035 feet. I should say probably 10 or 12 feet. Of course, 
this is all guess work with me, so far as measurements 
are concerned. If the water was in Water street there 
would be 10 or 12 feet of water over this land. I have 
seen row boats plying over these bottoms outside of the 
river channel. J] never saw steamers out of the channel 
of the river that I can recall. I don’t know anything 
about the high waters of 1883 or the high waters of 1892. 
1036 I couldn’t say about the highest water before 1900, how 
it compared with the high waters since that time. I am 
1037 not posted on different heights of waters in different 
years. I don’t know of a year when there was high water, 
before 1900, but I remember there was high water years 
before 1900, and I cannot recall any of the high waters 
that came as high as since 1900. Never had occasion to 
remember or kept any record of the low waters before 
1900. I cannot answer any question on that subject. I 
1038 don’t know anything about the low water of 1901. Gen- 
erally speaking, I think the water is higher in the river 


228 


at all times of the year. I know that the river is higher 
than it was before the drainage canal came in, because I 
am told so by the man that keeps the records over at the 
river bridge. That is what I am basing my opinion on 
as to the level of the water. JI compare the river with 
1039 the years way back before the drainage canal came in. 
Take any years previous to that. I couldn’t say whether 
the river was lower during September, 1901, than in 
1040 1893. I don’t know whether I am comparing stages of 
water before the Henry dam was put in or not. I could 
not say whether the dam was in or not. I don’t know 
how many feet the Henry dam would raise it, but it 
raised it some. I can’t say or pick out any time the 
river was higher and compare it with a similar time in 
any other year. I never tested the current of the river 
to know whether it was. faster. I have not made very 
much observation of river conditions, nor kept track of 
the stages of the water. [I didn’t do that. I think before 
the dams were put in the river was lower than it has 
been since 1900. I refer to the Henry dam. I have not 
1041 kept any record of those things. I merely expressed 
my opinion when I was asked the question and thought I 
was expressing it right. I have not an opinion as to 
how much the river has raised. I really cannot say. I 
only casually observed these conditions. As I said, 1 
never kept any record and could not be accurate about 
1042 it. Thev used to plant these bottom lands in the latter 
part of May or beginning of June, I think. I imagine 
that since 1900, the water gets off these lands about the 
latter part of May or beginning of June. I am acquaint- 
ed with the corn and other farm crops and the methods 
of raising them. I have not farmed for a good many 
years. I lived on a farm when I was young. I don’t 
know that they have raised any other crop than corn 
there, I don’t know whether the land would have a value 


229 


of raising of crops that require a shorter time than corn. 
1043 I don’t know whether other crops could be raised that 
would mature between the Ist of July and the Ist of 
October. I am not well enough acquainted with the dif- 
ferent grades of crops that might be put in there and 
mature. I always looked on it as corn land. I think 
this land would have a value if it is possible to raise gar- 
den crops or crops for forage purposes and if silage could 
be raised on the land. Of course, those things would 
1044 have to be proven to see that it could be done. I don’t 
know that silage corn has been raised on land similarly 
situated and just a short distance from that. I don’t 
know of any silos on Mr. Dunecan’s land. If those things 
eould be done the lands would be valuable for that pur- 
pose and would indicate a greater value than [I men- 
tioned. I have based my answer as to values upon the 
impracticability of raising a fully matured crop of corn 
on this land. I cannot recall at any time that these lands 
were overflowed between the Ist of July and the Ist of 
1045 November. It might be possible they have overflowed. 
1046 I am not sure whether it might not. I have no recollec- 
tion of this land being overflowed in any way between the 
Ist of July and 15th of November. 


1047 Henry Myer, a witness called by the plaintiff, testified 
as follows: 


Direct Examination by Mr. Butters: 


My name is Henry Myer. I live in Peru. I am bridge 
tender on the south side of the river bridge. That is 
across the river just where section 21 in located. T have 
been in that employment for six years. Prior to that I 

1048 was on a farm, a mile and a half or two miles south. 
I lived there two years. I lived there three years. That 


230 


is three blocks up the hill over there. I lived on Sam 
Waugh’s place. Waugh’s house, where I lived on his 
place was up on top of the hill. I lived in that place 
1049 three years. He had section 21 rented from the Car- 
bon Coal Company. Prior to working for him I lived 
in town. I knew this land before I worked for Waugh. I 
have known this land since 1889. The first year I worked 
for Waugh was in 1894. I don’t know exactly the acre- 
age. There was some bush land besides the farm land 
shown on section 21. I think there was from fifty to sev- 
enty-five acres of timber. I was the hired man and did 
the farm work. They raised corn on this land. The 
corn was raised all over it. This land was all fit to 
1051 raise corn and that is all that they did with it. . We 
would go on the land to cultivate it about May. We 
generally got through planting about the 1st of June. 
1052 It was a black soil. They always raised good crops to 
1894, when I worked for Waugh. The crops would run 
from 60 to 80 bushels to the acre. The corn was of 
good quality. I mean it was sound corn. I worked there 
1053 all told seven years. I lived there in 1901. During the 
years that I worked for Waugh we let the cattle go in the 
stalks in the winter time. There was times when the 
cattle were not in the stalks during the winter. I know 
a couple of times; I don’t exactly know what years. The 
water came up. That is the reason they were not turned 
1054 in. That was around January, about Christmas, there 
was a lot of cattle, 150 to 200. There were no fences 
put up to keep them in during the winter on any part 
of the land. After I left Waugh I worked at Kale’s 
1055 place and went over past this land in section 21. Was 
there about the year 1902. There was nothing raised 
there at that time. Everything was overflowed there. 
Since I left there the crops on the land some years were 
pretty good, and some years not. I never worked on 


231 


1056 this land after I left it. I saw it about every day. 
I should say about one-third of it has been cropped since 
T left there. The other two-thirds had overflowed. Only 
weeds growing on it after the water went down. I don’t 
1057, know how many acres of corn is there this year on sec- 
tion 21. I should say about a hundred acres. I have 
not examined any of the corn. I can see the corn field 
from where [I live. I never was in it. I have a view from 
my place of business at the river bridge over this land. 
I don’t know exactly about the depth of the water in 
1058 the river. The water is higher in the river since Jan- 
uary, 1900, than it was before that time. I should say 
from four to five feet about. I can tell by the piers on 
the bridge and on the break water, on the ice breakwater. 
The ice breakers are located on each end of the bridge. 
On the east side there is a water gauge. There is marks 
by the inch and by the foot. I saw that the water is not 
1059 five or six feet higher than formerly. I don’t know 
anything about it except what I have seen on the piers. I 
think that this land in section 21 had a fair cash market 
value of about $100 an acre inthe month of January, 1900, 
1060 prior to the turning in of the water. I think that the 
same land and the land that is in corn this year, upon 
which corn was planted and raised this year, was worth 
on that same day, after the water was turned in, about 
one-third of that. Land in section 21 on which no corn 
has been grown this year, I think the land is worth 
1061 nothing. The water comes up over this land and has 
come up over it since 1900. It comes up in the winter 
and spring. It doesn’t go away like it used to. It stands 
there. Before 1900 the river would go quicker down. I 
1062 know the effect that had on the soil there on its pro- 
ductiveness. Nothing will grow on the low ground. 


232 


Cross-Examination of the Witness Henry Myer by 
Mr. Chiperfield. 


IT am the bridge tender. I do not keep any gauge. I 
no not keep any record at all. I tend the Peru river 
bridge, wagon bridge. I think the bottom lands in sec- 
tion 21 are practically worthless; not worth anything. 

1063 I have some land rented there in the bottoms for Brown 
for truck purposes right there at the bridge and I have 
some rented for next year. I paid nothing for it this 
year. If I raise a crop I pay rent and if I don’t I pay 

1067 nothing. I have rented lands for cash rent in the im- 
mediate vicinity of this land. That is, if I get a crop I 
pay cash money, $6, an acre. I didn’t get any crop this 
year. I raised very little in my garden this year. 
I didn’t have enough for my own family. Of 
course, I couldn’t get it in early enough and the ground 
was no good. It wasn’t the water that killed it out; it 
was dry. I asked Mr. Brown if he will give me a strip 
for next year and he said he couldn’t tell. I have been 
at the bridge six years. There is a gauge at the bridge. 

_ I don’t read the gauge. I don’t know anything about the 
zero of the gauge on the bridge. The gauge is nailed on 

1070 the north side of the river and it sticks in the water. I 
never took any notice of where the water stands on the 
eauges at a low stage of water. I never marked it down. 
I am not paid for taking care of it. The job of keeping 
the gauge for the Sanitary District was never offered 

1071 to me. JI told one man this summer that the job of 
keeping the gauge ought to belong to the bridge tender. 
That is what I meant a while ago when I told you to 
ask the man whom the Sanitary District paid for watch- 
ing the gauge. No sir, I am not a bit unfriendly because 
the District didn’t employ me to keep the gauge. I have 
no feeling in this case. Of course, if I would get paid for 


233 


it by the Sanitary District I would mark it down, yes 
sir. 

1072, Q. Isn’t it true that you have made the statement at dif- 
ferent times that you proposed to get even with the San- 
itary District because they didn’t employ you to read 
the gauge? A. Well, I didn’t say I wanted to get even 
that way. 


Q. Didn’t you say that in substance? A. I only said 
that it belonged to me. 


Q. But itis your opinion that the job does belong to 
the bridge tender and you ought to have the money? A. 
I ain’t particular on that. 


1073 I have made a study and looked to see whether or not 
there was a difference in the height of the water on ac- 
count of the fishing business. I know where the river 
stood before 1900. I was engaged in farming before 
that. I used to drive over the bridge. JI made marks of 
high and low water before 1900. While I was still work- 

1074 ing on section 21. I could see how high and low the 
water was the way the steamboats go. I made those 
marks on the pier. I didn’t go down to the piers to 
mark it. I could see how many rocks was on top of the 
water. There was 15 on the south side pier. The last 
pier. They are still standing there in the same condition. 
I counted the number of rocks and saw there were 15 
rocks above the water in that pier when it was in low 
water, the very lowest water. I didn’t measure those 

1075 rocks, exactly. I judged them about 15 or 16 inches; 
and between the water and the bridge there were 15 of 
them. I saw the low water of 1901, after the Sanitary 
District was opened. 1901 was very low water, about as 
low water as I have ever known on the river. There was 
about that many rocks above the level of the water in 

1076 1901. I have counted the very lowest water that I 


234 


could find and found that there was 15 rocks above the 
water. There was about 12 rocks above the water now 
and this is a compartively medium stage of water. The 
present stage of water in the river has been added to by 
the fall rains and the water is moderately high at the 
present time. I didn’t count those rocks this morning. 

1077 I say that the land there where there is no corn this 
year is worth nothing, has no market value, and that 
nothing could be obtained for it on the market if it was 
offered for sale. I don’t know if the coal is sold or not. I 
don’t know whether that land is worth $100 an acre with 
coal lying as it does, or not. 


1079 CuHartes Mupas, a witness for the plaintiff, being sworn, 
testifies as follows: 


Direct Examination by Mr. O’Conor. 


My name is Charles Mudge, I live four miles south of 
Peru. Age 44. Occupation farmer. Been farming all 
my life. 

In traveling from Peru to my farm, I cross the Illinois 
river bridge located west of the Waugh land. After 
crossing the bridge going south across another bridge 
over the McCormick Slough. 


1080 Knew Sam Waugh in his lifetime. Waugh from 1890 
down to 1900, lived in the city of Peru and was farming 
land in section 21. The farm house and other buildings 

1081 connected with the land were located 40 rods or more 
from the farm land. | 

During the years specified I knew those lands on sec- 

1082 tion 21 to a certain extent. In 1893 and 1894 was there 
one day in the week during May and June; other years 
three or four times a year. I do not know the acreage 


235 


but they were raising corn, no timber except small 
1083 bunches. Soil black loam. 


1084 During 1893 and 1894 I saw corn growing on this place. 


1085. Outside of those years I was there three or four times 
during the summer. 


1086 During the years 1893 and 1894 practically all of this 
eround was in corn. It appeared to be planted regularly. 


1087 During those years it was good corn. 1892 was a wet 
year, nothing raised on the bottoms. Between 1895 and 
1900 practically all of the land in corn. After the corn 

1088 was husked cattle were turned in. 


Q. Now, Mr. Mudge, from your experience and knowl- 
edge and your acquaintance with this land, I will ask 
you to state what in your opinion was the fair cash mar- 
ket value of the land in the year 1900 in the month of 
January prior to the 17th day. 

Objected to by defendant; objection sustained. 

Q. If you know. 

The Courr: I will let him answer it now. 

A. $100 an acre practically. 

Familiar in a general way with the condition of the 
Illinois River at the time the Sanitary District water 
was turned into the valley. The difference I have ob- 

1089 served is that the banks are fuller of water, it comes 
nearer to the top of the bank than it did prior to that. 
Never took any measurements, simply my observation. 


Since 1902, have been down to the house south of the 
road. Drove along the road west of the land probably 
twice a week. Observed crop conditions. Part of it now 

1090 grown up in weeds and part of it under water. One- 
1091' third in crop. The corn in small pieces, irregular. 


1092 @. Have you an opinion Mr. Mudge as to what the 
value of that land was during the month of January in 


236 


the year 1900 after the 17th day, taking into considera- 
tion what you now know concerning the flow and condi- 
tion of the Illinois River? A. I don’t believe I just un- 
derstand the question. 


@. Have you an opinion as to the market value of 
that land, the fair cash market value of that land subse- 
quent to the 17th day of January, 1900, after turning in 
the water of the Sanitary District, and taking into con- 
sideration the facts which you now know? A. From a 
farmer’s standpoint? 


Q. Well, just have you an opinion? <A. Yes, I have. 
Q. Whatis that opinion? A. I have, yes. 


Q. Whatis that opinion? A. From a farming stand- 
1093 point it would not be worth anything because the taxes 
on the land and the expenses of farming that acreage 
would be so much; the acreage that would be fit for farm- 

ing purposes, would leave no profit. 


Cross-Examination by Mr. Chiperfield. 


1094 I do not know whether that land has raised more than 
5,000 bushels of corn this year. I do not mean that the 
cost of raising 100 acres of corn is more than the price 
the corn will come to. The cost of raising corn is about 
30 cents a bushel. We sold corn one time for 25 or 26 

1095 cents a bushel but don’t remember of selling any for 
20 cents a bushel. The cost of raising 5,000 bushels of 
eorn on that land this year would not exceed the price 
they would get for the corn. Know many men are suc- 
cessfully and profitably raising 20 to 40 acres of corn 

1096 and up to 100. I do not say that the cost of raising this 
100 acres of corn is more than it will come to. Don’t 

1097 think land which will raise 50 to 60 bushels of corn to 
the acre is worthless. 


237 


I said that in fixing the value of the land at nothing 

I took into consideration the taxes that a man would have 

to pay. I don’t know what the taxes are. I do not know 

that the day never existed when this land was taxed by 
1098 the assessor at over $20 an acre. 


1099 If it has been the practice to rent the land to tenants 
in small patches, I would not assume that one man was 
equipped to do the whole farming operation, and would 
not say that the cost of the taxes would preclude success- 
ful or profitable farming. The taxes would not exceed 

1100 $1.00 per acre. I do not know what the taxes are on 
this land. 


When I took into consideration the $100 that I consid- 
ered the value of the land, I did not consider what its 
fair rental was after taking into consideration the crops 

1101 raised on the land. [I do not know that Waugh paid 
only $500 a year for the lands. 


Mr. Cureerrretp: If it transpires as has been prov- 
en in this case 





Mr. O’Conor: To which we object. 


The Court: I sustain the objection. 
To which ruling of the court, the defendant by its 
counsel, then and there duly excepted. 


Mr. Curperriretp: Well, I think I have the right to 
ask the question. 


The Courr: I don’t think you have the right to state 
what has been proven by some other witness or what is 
already testified to, Mr. Chiperfield. As to that feature 

1102 of it, I sustain the objection. 
Exception by defendant to the ruling and remark 
of the court. 


@. Upon a basis of $500 yearly rental for between 
four and five hundred acres of land in section 21, and 


238 


that rental existing from 1890 up to 1900, would you still 
say that in your judgment the fair cash market value was 
$100 an acre? 
11038 Objected to by plaintiff; objection overruled. Eix- 
ception by plaintiff. 


1104 A. Yes. 


In valuing the land J would not take the rental into 
consideration. When I say the land is worthless, I con- 
sider it merely as an agricultural proposition and exclude 
every other consideration except as an agricultural prop- 
osition, and confine my testimony purely to the possibil- 
ity of raising corn upon this land and am not considering 
1105 anything else except a corn raising proposition and am 

ignoring the value of the property as a coal property 
and for every other purpose except raising corn. | 


TI never knew the full number of acres that was in corn 
In any particular year between 1890 and 1900, but in my 
1106 judgment I think there would be about 250. 


I have seen 150 head of stock on the land. They could 
sustain themselves 60 days off of 250 acres of stalks. 


J107 The river has been higher since 1900. I do not know 
that it is not true that the extreme high water was higher 
before 1900 than since. Iremember the high water of 1892. 

1108 Could not say whether it got as high as the high water 
of 1893. Have seen the road which I traveled entirely over- 

1109 flowed before 1900 as well as since. Sometimes as much 

1110 as ten feet of water on the land. No buildings on the 
land, no fences, stables, out buildings, corn eribs or any 
tile or small buildings usually found around farms. Don’t 
know of so much as a smoke house or any other kind of 
a house being there. It would be flooded away if it was 
there. 


1111 When I said I was going through the corn field I was 
going from my farm to Waugh’s and then over to Peru. 


239 


1112 The road went practically straight north about through 
the center of the section. It was a private road left for 
1113 the convenience of those working the place. 


1114 Epwarp. Pyka, a witness for the plaintiff, being swo1n, 
testified as follows: 


Direct Examination by Mr. Butters. 


My name is Edward Pyka; I live at Cedar Point, five 
miles south of Peru, for eight years. Farmer since 1893, 
1115 in this and Bureau County. Known land on Section 21 
for the last eight years. First saw it in 1893. Sam Waueh 
was farming it then. Saw it about four times in 1893 and 
1116 pretty nearly every year until 1901. Growing corn gen- 
1117 erally when I first saw it. Saw the land pretty nearly 
1118-9 every year and crops growing on it. In 1893 the corn 
went better than 80 an acre. The stalks were big, high 
1120 growth. The soil productive. There were 13 or 14 teams 
working on the land. 


Have an opinion as to the fair cash market value on 
January 17, 1900. It was worth between 95 and 100 dol- 
1121 lars. Have farmed land since then, farmed the east side 
1122 of it, 80 acres on 21 somewhere near center of the tract. 
Rented it in 1905. Got on the land that year the last of 
1123 May and plowed 38 acres. The rest of it was wet, could 
1124-5 not plow it. Got to the land on graded road up to it. 
Weeds on the land not farmed. 


1126 The Guest boys farmed 20 acres in 1905. Shank Cos- 
1127 grove farmed some of the land, 12 or 14 acres. Another 
fellow there out in the southwest section Gill MceCable had 
1128 about four acres. No other agricultural operations con- 
ducted on that land that year. Continued wet until July. 
1129 1906 I had the same patch, got the same amount. The 
eorn was soft in 1905; husked it the beginning of October. 


240 


1130 In 1906 we had a pretty fair crop, raised about the same 
quantity. Planted the rest of the land in June but the 
corn did not mature. In 1906 got about 1,200 bushels for 

1131 my share. It was good quality. Bottom lands are strong- 
er and mature crops much quicker. 


1132 In 1907 I rented 120 acres. Put about seven acres in 
that year. Did not mature any of it, the water was too 
high. 

Judging from what I know would say the fair cash mar- 
ket value of the land on the 17th day of January, 1900, 

1133 after the water was turned in, was $30 an acre, I mean 

1134 the landI farmed. The rest of it was worthless. 

Mr. CuiprerFieLp: Your Honor, just so today may not 
pass without a motion being entered, I want to make a mo- 
tion to exclude the opinion of Mr. Mudge as to the value 
of this land. He stated he simply regarded it for corn 
raising purposes. 

The Court: Motion overruled. 


Exception by defendant. 
‘To which ruling of the court, the defendant, by its 
counsel, then and there duly excepted. 


Recess until November 15, 1912, at 9 o’clock a. m. 
1185 November 15, 1912, 9 a. m. 


Court reconvened. 


Hpwarp Pyka, a witness for the plaintiff, recalled for fur- 
ther examination, testified as follows: 


Cross-Examination by Mr. Chiperfield. 


I am the farmer for the La Salle County Carbon Coal 
Company on their land at Cedar Point. I rent the farm 
1136 from them. I rented land on Section 21 from them. 


241 


I was subpoenaed to come here. I know a man named 
1137 McPhedron. Have talked with him. We associate to- 
gether a great deal. 


1138 Paid cash rent for part of my land and rent the balance 
1159 on shares. Lease only runs this year. I was first ac- 
quainted with the land in 1893. I traded cattle with 
1140 Waugh and took our stallions down there. In 1894 don’t 
know whether I was there after August but know I was 
1141 there after October. In 1895 was there after August. 
Used to change sheep and cattle with them every year. 
For instance, take a ram we used one year and he would 
use it the next so as not to interbreed. Would make the 
1142 round trip in a day. 


Corn grew better than it did on the prairie. There 

were many acres where the corn would go better than 100 

1143 bushels; some would go as high as 120. Did not see any 

as high as 130 or 140, but half of the land down there went 

120 bushels per acre and half of it just a little lower. The 

half a little lower would average about 50 or 60 bushels, 

1144 some of it 40 bushels. The 40 bushel corn grew on high 

land. The difference in elevation between the high and 

low pieces was two or three feet. I think that an elevation 

of two feet in the field would make a difference between 

the yield of 120 bushels an acre and 40 bushels an acre. 

1145 It usually happened in order to make the corn grow fast 

er the nearer it was to the water the better and the higher 

the land got the poorer the crop it raised. The water 

surface was never more than three feet below the lowest 
part of the land that I regarded as tillable. 


1146 Have seen the land during the past week. The stage of 
water is comparatively a high stage. The water is not 
over the part where the corn is planted. The river now is 
at least three or four feet above low water conditions and 
still it is not over the place where the corn is planted. 


242 


1147. The place where the corn average 40 bushels was on 
the ground a couple of feet higher in the north end of Sec- 
tion 21 and along the south side of Section 21. The high- 
est pieces constituted about one-third of the ground. 


1148 Don’t know that the highest pieces of ground would 
raise better crops and that there would not be a difference 
of 80 bushels in land 24 inches higher and land 24 inchs 

1149 lower. The grade of corn on the land raising 40 bushels 
was just the same as on the land raising 120 bushels, but 
the stalks and ears were not so large. The ears on the 

1150 40 bushel corn would be about half as big as the ears on’ 
the 120 bushel corn. 


1151 Q. Don’t you know, as a matter of fact, that you never 
in all your life on that piece of land within the time you 
have mentioned from 1890 to 1900, saw any corn there that 
would go 100 bushels to the acre? 

Objection by plaintiff; objection sustained. To which 
ruling of the court, the defendant by its counsel 
then and there duly excepted. 


@. Don’t you know that your statement that corn on 
that land in any place would average 120 bushels to the 
acre is not correct? A. Yes, sir, there was corn went bet- 
ter than that. 


Q. How much better did it go? A. 125 bushels. 


I am sure about it as I was through the corn when they 
1152 were picking it. I counted the rows, eight and a half 
rows to the acre, one ear to the stalk, the ears from 10 to 
13 inches long, the corn planted three foot six apart and 
the rows three feet eight apart. 


1153 I know that in that particular piece of ground the wild 
cucumber, man vine, morning glory, grew but don’t know 
that the corn was pulled down by the weeds. 

1154 I counted the rows and estimated the size of the corn 
just to see the difference between the bottom land and 


243 


the top land. As a result of that I did not come to the 
conclusion that bottom land where buildings could not be 
erected, fences could not be built, houses could not stand, 
were two or three times as valuable as the upland. 


I was not on the land before 1890. Before 1900, started 

1155 plowing in May or April. Don’t know that the water 
was never off the land before May 15th. Knew about the 
character of the lands before 1900, the kind and character 
of property this was. Did not know that this property 
owned or claimed by the La Salle County Carbon Coal 
Company was a coal mining proposition. 

1156 Q. Did you know that under the law of the State of 
Illinois that they would have a right to own no land of 
any kind except such as was necessary for the prosecution 
of their business? 

Mr. O’Connor: I object. 
A. I don’t know anything about that. 


Mr. O’Conor: Waita minute. Your Honor, we object 
to the asking of that question as being highly improper. 

The Court: I sustain the objection. 

1157 To which ruling of the court, the defendant, by its 
counsel, then and there duly excepted. 

Mr. CurprerFietp: I specifically except to the ruling 
of your Honor, and if you will allow me I want to be heard 
on the proposition without the presence of the jury. 

The Court: Well, I think I have heard that two or 
three times this week. 

Mr. CurperFieLtp: You haven’t heard a word from me 
on that subject, have you? 

The Court: Well, I think I have heard it in a general 
way in the pleadings and all through the case. I don’t 
think that I will let the jury retire to be heard on that. 


244 


Mr. CurperFieLp: J ask the record to show that I re 
quest of the court an opportunity to be heard 

The Court: I overrule the request. 

Mr. CurperFieELD: ——upon the ruling. 

The Court: I overrule the request. 

Mr. Cuirerrietp: I except. 

To which ruling of the court, the defendant, by its 
counsel, then and there duly excepted. 

Mr. Cutperrretp: Did you know that this property was 
connected with and used by the Carbon Coal Company 
as a coal mining proposition? 

A, No, sir, I did not. 

. Did you regard it entirely and exclusively as an 
agricultural proposition? A. I only considered the 

1158 use of the land for farming purposes, took into consid- 
eration no other use. Did not consider that the property 
had any value for coal purposes and have left that en- 
tirely out of my calculations. Took into consideration 
what the rental value of the property would be prior to 
1900. Did not know that the rental value of the property 
for ten years before 1900 was $500 a year, for the tract, 
whatever it was, between four and five hundred acres. 


1159 Q. If the rental value of this land was, for the entire 
tract, $500 a year, upon that rental value of one dollar 
and some cents an acre, would you say that the value of 
this property for agricultural purposes was $100 before 
1900? <A. Yes, sir. 


1160 Don’t know where Dennis Lynch’s property on Section 
33 is that M. W. Duncan bought in 1898. 


1161 Q. Well, then, I want to ask you if you know whether 
or not that the east ten acres of the west one-half of the 
southwest quarter—I should have said Section 13, of 
Township 33 North, Range 1, east of the Fourth Princi- 
pal Meridian, and also the east half of the east half of the 





245 


southeast quarter of Section 13, Township 33 North, 
Range 1, east of the Fourth Principal Meridian, consist- 
ing of 50 acres of land sold on the 7th day of June, 1898, 
at public sale to Mr. Nicholas W. Duncan for $348.87. 
Mr. Butters: We object to that. 
The Court: How far is that from this land, in miles? 
Mr. Cureerrietp: From the land involved in this suit 
it is perhaps within two and a half miles of this bottom. 


1162 Objection sustained; to which ruling of the court, 
the defendant, by its counsel, then and there duly 
excepted. 


Mr. CurperFreELp: We offer to show by this witness, 
if your Honor please, that in the proceedings of William 
P. Leaghy, assignee of Dennis Lynch, on the 7th day of 
June, 1898, by authority of a decree of the County Court 
of La Salle County, Illinois, at the May Term, 1898, in 
the case of William P. Leaghy, assignee of Dennis Lynch, 
against Dennis Lynch and others, that there was sold at 
public auction to Nicholas W. Lynch the interest of Den- 
nis Lynch in the Hast 10 acres of the West 4 of the South- 
east Quarter of Section 13, Township 33 North, Range 1, 
Hast of the Fourth Principal Meridian; also the Hast 
half of the East half of the Southeast Quarter of Section 
13, Township 33 North, Range 1, East of the Fourth 
Principal Meridian, for $348.87, and that land is land 
that is similarly located and within two and one-half 
miles of the land in Section 21, and adjoining the land in 
controversy in this suit, in Section 24, and adjoining the 

- 1163 land described in the plaintiff’s declaration in Section 
14, and within three-quarters of a mile East and a mile 
North of the land described in the plaintiff’s declaration 
in Section 15, the South line of the premises concerning 
which the offer is made being the North line of Section 24 
and of Section 23 and of Section 22 and of Section 21? 

1164 Objection by plaintiff; objection sustained; to which 


246 


ruling of the court, the defendant, by its counsel, 
then and there duly excepted. 


Mr. Curperrrip: Now, then, your Honor, I have a 
number of other offers I want to make in connection with 
the cross-examination of this witness. 


Mr. O’Conor: They ought to be made, Mr. Chiper- 
field, out of the presence of the jury. 


Mr. CurpeerrieLtp: I don’t care how they are made. I 
simply want to make them, that is all. 


1165 (The jury leaves the jury box.) 


Mr. Cuiprerrietp: I want, if your Honor please, to 
interrogate this witness and to ascertain his knowledge, 
and if possible, to prove and show by this witness that 
on the 9th day of February, 1899, that Michael Cummings 
and wife, Bridget, conveyed the West 45 feet of Lot 3, in 
Block 91; the South 100 feet of Lot 14, Block 95, La Salle. 
Also, beginning at a point on the public highway 34.41 
chains west of the Northeast corner of Section 22, Town- 
ship 33 North, Range 1 Kast, running thence South of 
the center of said road four degrees and fifteen minutes 
Hast, 28.382 chains to a stone for a corner in the East line 
of the right of way of the public road; then South four 
degrees and fifteen minutes Kast, 11.68 chains to the half 
section line; thence Kast 31.25 chains to the Illinois River; 

1166 thence up the river 31 degrees and 15 minutes Hast, 
14.83 chains to a stone at Duncan’s corner; thence West 
30 chains to the beginning; the deed was acknowledged 
before T. I. Doyle, notary public of La Salle County, 
Illinois; and that the value of the premises in La Salle 
was at least $1,750; that this land adjoins the land in 
question in this suit and is similar land. 


I also want to show that upon the 26th day of June, 
1894, in connection with the cross-examination of this 
witness, if possible, that John Stewart, widower, con- 


247 


veyed to Edward Henry Cummings all that portion of the 
North 30.25 acres in the Northeast corner of Section 22, 
Township 33 North, Range 1, East, which hes Kast of 
the road known as Shippingsport Road, and South of 
the right of way of the I. V. & N. Railroad, and North 
of the 57-acre tract formerly owned by N. Duncan, for a 
consideration of $490; acknowledged before T. N. Has- 
kins, notary public; and that this land adjoins the land 
in question. 

I want to show by this witness in connection with its 
cross-examination, if possible, that on the 12th day of 
March, 1894, for the sum of $450, the Utica Hydraulic 
Cement Company conveyed to the La Salle County Car- 
bon Coal Company the coal under the Northeast Quarter 
of Section 23, North of the Llinois River, in Township 
33 North, Range 1, for the sum of $450; acknowledged 
before J. B. Condif, notary public, La Salle County, Ih- 
nols. 


I also want to show that on the 16th day of January, 
1893, Jane R. Hubbard, widow, and sole executrix of 
Henry Hubbard, deceased, conveyed to the La Salle 
County Carbon Coal Company for the consideration of 
$788.50 all the coal and other mineral— 


The Court: Don’t you think we had better dispose of 
these one at a time? There will be so many that I won’t 
recollect. 


Mr. Curerrrietp: I will be glad to conform to what- 
ever the court’s idea is. 


The Court: How many more have you? 


Mr. Curperrietp: I think there are perhaps three or 
four more. 


The Court: I can’t recollect the dates or the names 
of all of them. You may go ahead. 


Mr. Curperrietp: I will do any way you say. I want 


248 


to conform to the court’s ideas in any way just as far as 
1168 I can consistently with the rights I represent. 
Objection to first offer overruled. 
1169 The Courr: What is the next one? 

Mr. Cureerrietp: John Stewart to Hdward Henry 
‘ummings, conveying ‘‘certain premises in Section 22, 
Township 33 North, Range 1, Hast, on June 26, 1894, for 
$490.”? 

1170 The Court: How far is that from this land? 

Mr. CurperrreLp: It adjoins it. 

Mr. Butrrers: Object to it on account of being too re- 
mote in time. 

The Court: 1894? °I think I will overrule the objec- 
tion. Read your next one. 

Mr. Curprrrietp: The next one was the Utica Hy- 
draulic Cement Company to the La Salle County Carbon 
Coal Company, conveying the coal under the Northeast 
Quarter of Section 23, North of the Illinois River, in 
Township 33, North of Range 1, for the sum of $450. 

The Court: I recollect that. What do you say about 
that? Do you object? 

Mr. Burters: We do object, your Honor. 

The Court: I sustain the objection. 

To which ruling of the court, the defendant, by its 
counsel, then and there duly excepted. 


Mr. Cuiperrietp: The next one is Jane Hubbard to 
the La Salle County Carbon Coal Company, the 16th 
day of January, 1893, conveying and confirming all the: 

1171 coal and other minerals underlying the following frac- 
tion: North of the Northeast Quarter South of the TIli- 
nois River containing 30.85 acres, more or less. Also, 
the South fractional one-half South of the— 

The Court: That is the coal? 

Mr. CHIPERFIELD: “Yes. 

Mr. Butrrers: Object to it. 


249 


The Court: Sustain the objection. 

To which ruling of the court, the defendant, by its 
eounsel, then and there duly excepted. 

Mr. CurperFieLp: The next one is Michael Brannan 
to Ann Brannan, conveying and warranting the West 
ten acres of parallel width North and South of the Kast 
36.65 acres, of parallel width North and South of the 
East one-half of the Northwest Quarter of Section 24, 
excepting and reserving the coal, for $220, February 1, 
1896. On Section 24, adjoining part of the land involved 
in this proceeding. 

1172 Objected to; objection overruled. 
(The jury returns to the jury box.) 
(Cross-examination of witness resumed.) 


“I do not know of the sale and conveyance referred to 

by you including lands in Block 91, La Salle, and a 
part of Section 22, Township 33, North, Range 1, neither 

do I know of the sale made by John Stewart in January, 
1174 1894, to Edward Henry Cummins. If any sales of that 
kind were made in the vicinity of land similarly situated 

to those, that would not effect my idea of the market 
value of those lands. I have not taken or attempted to 
take into consideration any sales of any kind, but have 
fixed my own idea of the value of this land as a corn 
proposition, and have not taken into consideration its 
use for any other purpose. If the land will not raise 
1175 corn, but will raise other valuable annual products it 
does have a value. Don’t think it would raise millet, it 

is too rich. Did not hear of any millet being raised across 

the river within a period of six weeks which was not 
1176 planted before August Ist. Millet could be planted on 
there and it would grow and the only risk I think would 

be the risk of going down. I think vegetables would grow 
1177 on the land; it would be a splendid vegetable garden. 
Sweet corn, peas, beans, sugar beets, turnips, and all 


250 


vegetable crops requiring a short period to mature would 

erow on this land, although I don’t think they would 

erow there as well since 1900, as before. Think it would 
1178 be too wet. 


I think in 1907, after the 15th of July, you could not 
plow in there; 1907 was a very wet year with high water 
practically all the year. It rained very heavy during 

1179 the times we were putting in the crops. It was a very 
wet cropping season. 


Take the years when the water did not go down until 
the 20th of June and where you getin a crop by the 15th 
of July, none of the things you mentioned would grow 
upon that land. If they would grow it would give this 

1180 land a little value. The land that could be plowed, I 
think, would be worth $30. 


When my attention is called to the raising of these ad- 

1181 ditional things, it does not change my idea as to the 
value of the premises as expressed yesterday when I 
stated that as a corn growing proposition the land would 

be worth $30. The greatest amount of corn I ever saw 
1182 growing on Section 21 was from 250 to 275 acres. In 
1183 1897, think about 300 acres. It was all in corn except 
patches in timber. Farmed land in 1905 and 1906. In 
1184 1906, I was so favorably impressed with the land that 
1185 I rented 120 acres instead of the amount I had the pre- 
vious year, wanted more than I had in 1905 and 1906. 

In 1900, there was a splendid full crop of corn raised on 
1186 this land, and in 1901, there was a splendid crop of corn. 
In 1902, there was a great flood, nothing was raised any- 
where on the bottoms. Did not notice the water much in 
1901, it was a dry year. I could not see much difference 
1187 in the low water between 1890 and the present time. 
Before 1900, the very lowest I ever saw the river below 

the top of the bank next to Section 21 was four or five 


201 


1188 feet. Now it is right up to the top. In low water in 
the summers now the water is within a foot and a half 
of the top. Don’t say that there is not a space between 
the top of the bank now and the low water we have had 
in the summer since 1900. Have not been down to the 
river for the purpose of making any observation during 
the low water. 


1189 Last summer I ran a launch on the river. Did not 
keep track of it in any month. Know that it has been 
raining since August and that the river has been raising. 
Have not observed a three-foot rise in the last 30 days, 

1190 could not say whether it has or not. Don’t know any- 
thing about the Fox River. Would say the [llinois River 
in the last 30 days has raised a foot and a half to two 
feet; would say two feet. 


1191 When I placed the value of this land at nothing, since 
1900, where I did not get a corn crop, I did not take into 
consideration whether or not this land had underlying it 
a high grade merchantable coal. If it is underlaid with 
a high grade merchantable coal I would think the value 
would be greater than I have stated. 


Q. Do you think if it was underlaid with a high grade 
merchantable coal, two veins, containing from 3,500 to 
0,000 tons per acre, that the value of this land would 
have been $100 an acre in 1900? A. Yes, sir, I think it 
would be worth a great deal more. 


Re-direct Examination by Mr, Butters. 


Q. Mr. Pyka, assuming that there was coal under this 
land, as Mr. Chiperfield has implied in his question, that 
coal being there on January 17, 1900, and assuming the 

1192 land was worth a certain price prior to January 17, 
1900, would it be worth any different price on January 
18th, after the water was turned in? 


202 


Objected to by defendant; objection overruled; to 
which ruling of the court, the defendant, by its 
counsel, then and there duly excepted. 


A. Couldn’t you make that any plainer? 


Q. Yes, I think I can. If there was coal in this land 
and there is now coal under this land, would it be any 
different in price, would there be any difference in the 
price of the land on the 17th of January, 1900, and the 
18th of January, 1900; that is, before and after the turn- 
ing in of the water of the Sanitary District of Chicago? 
A. That is, the price of the coal? 


Q. Yes. The land in relation to the coal; do you un- 
derstand? Would there be any difference in the effect— 


1193 The Court: Did the turning in of the water of the 
Sanitary District change the value of the coal? 


Mr, Buotrers:), Thatusat: 
AitiNo, Wydonst, thinkat did 


1194. Mr. Burrers: ‘I want to read the deposition of Homer 
R. Clark. 


Homer R. Cuarxk, a witness for the plaintiff, being sworn, 
testified as follows: 


Direct Examination by Mr. O’Donnell. 


Name Homer R. Clark, resided in Lockport 38 years. 

Real estate agent. Reside east of the Desplaines River 

at the present time, although formerly lived west of the 
river in Will County. Born on the Barrett B. Clark 
1195 farm and lived there 21 years. Desplaines River was 
1196 four miles distant; Lemont six miles and Lockport eight 
miles. The market place for father’s farm was Lock- 
port; necessary to cross the river going to market. I 
lived on the farm until 1867 and since 1867 in Lockport 


203 


within half a mile of the river. I saw the Desplaines 
River frequently during these years. 


1197 Between 1870 and the time of the Sanitary District 
construction during the period of dry weather, the Des- 
plaines River north of Main street in Lockport was often 
nearly dry at a point near the bridge at Lockport. At 
Romeo and Lockport I have observed it. At Lemont it 

1198 was very nearly dry where the bridge crosses the river. 
I have walked across the river at Lockport, not at other 
places. I have seen the time I could walk across there 
without getting my feet wet, occasionally driven across 
‘there. 


1199 Observed same places in the river during times of high 
water. High water generally in the spring, May and 
June. The land adjacent was used for pasture and have 

1200 known of grass being cut off of a portion of it. I know 
where the bridge over the Sanitary District Channel at 
9th street is, have been over it frequently. I have seen 

1201 that water at said place, both high and low. I don’t 

1202 know the exact width of the channel at that place. I 
have seen it filled with water from the end of the abut- 
ment to the other end of the bridge during the past five 
years. During the past five years I have seen it very 

1203 low and very high. I knew the natural channel, there 
were quite deep places in the channel. Prior to the Sani- 
tary District work it was rather shallow around near 
Lemont, but there were deep places between Lockport 
and Lemont. 


Cross-Examination. 


Would scarcely get my feet wet on account of running 
or standing water when crossing the Desplaines River. 


204 


1204 Deposition of F. G. BuaxnsLen, a witness for the plain- 
tiff, being sworn, testified as follows: 


Direct Examination by Mr. O’Donnell. 


My name is F. G. Blakeslee, I live at Lockport, since 
1205 1897. Am operator at the controlling works of the 
Sanitary District and have been so engaged for four 
years. I work eight hours, from seven o’clock until three 
daily. My duties are to take care of the machinery in 
connection with the controlling works, the reading of 
gauges, transmitting of records to the office, making of 
1206 records, and so forth. Other employes, whose duties 
are similar to mine; houses and buildings around the 
controlling works. The gauge that I refer to shows the 
1207 elevation of the water in the main channel based on 
Chicago City datum. The gauge directly on the Bear 
Trap dam shows the amount of water in feet and inches 
or feet and tenths, going over the dam. I read that every 
half-hour and make a minute of the readings and the rec- 
ord is sent to the Sanitary District office in Chicago 
daily. 
There are seven gates in the Bear Trap dam. Can 
1208 determine the amount of water passing over the dam 
by measurments taken by the engineers; also when the 
gates are opened, the amount of water going through the 
gates; also when the dam is raised so as to admit no 
water and the gates are opened. 


1209 During the four years I have been there the amount 
of water has varied at different times. The quantity 
of water to be let out is determined by the engineer or 
president of the Sanitary District. Orders are trans- 
mitted to me by telephone. Between the 15th of Sep- 
tember, 1904, and the present time, I could not state how 
much water daily was passing out of the basin. TI was 


259 


last on duty in reading the gauge this morning; was 
1210 there about two hours and a half. There was 3.9 feet 
of water on the crest of the dam, which, according to 
1211 computations by the engineers would indicate a flow of 
250,000 cubie feet of water per minute. 


1212 Before January 17, 1900, there was no water passing 
over the Bear Trap dam, it was not opened. I think 
1213 during the past year the highest water passing over the 
Bear Trap dam was 4.5 feet. That would indicate about 
1214 520,000 cubie feet of water per minute. The amount of 
water that can be let over the Bear Trap dam when the 
dam is lowered depends upon the elevation of water in 
the main channel. As the water stood at nine o’clock 
this morning when I was on duty, if the gates were low- 
ered as low as could be, I think it would be possible to let 
over about seven feet of water. It would, of course, well 
1215 for instance, for the first few minutes, after that it 
would materially lower the water in the basin which 
would decrease the amount of water going over the dam. 


I was on duty a portion of the month of March, 1905. 


1216. I cannot tell how many cubic feet per minute seven 
feet of water going over the crest of the dam would be 
without looking at the table. I have a copy of it in my 

1217 pocket. I have not any table which would show seven 

1218 feet of water over the dam. I cannot tell how many 
cubic feet of water is indicated by the discharge of one- 
tenth feet of water over the crest of the dam without 
looking at the table. One-tenth of a foot, 1,000 cubic 

1219 feet. The table was furnished to me by the assistant 

1220 engineer of the Sanitary District, Mr. Cooley, to whom 
I daily transmit the records in cubic feet and tenths, of 
the flow. | 


1221 Iwas present when the water was turned into the chan- 
nel over the Bear Trap dam on January 17, 1900. The 


206 


act of turning the water in was performed by E. L. 

1222 Cooley. I cannot tell what difference there has been 
in the quantity of the water that they allowed to pass 
over this dam in the summer and winter; there may not 
have been any so far as I know. 


1223 I cannot tell the greatest quantity of water from my 
recollection which I have seen flowing over the dam at 
any time during my service. I cannot tell the greatest 
number of feet of water I have seen going over the dam. 

1224 I have seen the dam down flat but at the same time 
there was low water in the channel which would not 
make any excessive flow. I cannot tell how long it re- 

1225 mained flat. I think we have had the dam down at 
times pretty near as far as it would go for two days; it 
might have been during flood time, or it might have been 

1226 at other times. 


Usually put in eight hours out of the twenty-four at 

1227 the controlling works each day. Since I have been em- 
ployed at the controlling works water has been passing 
over the dam most all the time. I do not know of any 
time that there has not been water going over the dam 

or through the gates except at times when we would have 

to raise the dam for repairs, taking half an hour or more, 
some short period. It has been in constant operation. I 
1228 don’t remember any date when it was necessary or 
when we did allow a greater quantity than usual to pass 

out of the basin during times of high water or rain peri- 

ods in the Desplaines Valley. I do remember the icr- 
1229 cumstance on one occasion but don’t know the purpose. 


The table I used to-day was one furnished me by the 
engineers. It is used by me in making up my records 
1230-31 and reports. I haven’t the table. I believe it is 
1232 printed. The table was given back to me before my re- 
fusal to let you see it. 


207 


12338 The Sanitary District channel from the controlling 
works to the 9th street bridge varies in width from three 

1234 to six hundred feet. Aside from the water flowing from 
the dam and through the gates the only water which es- 
capes from the windage basin is water that goes through 
two water wheels which we have for developing power 
for heating and lighting the buildings and grounds. There 
is a raceway east of the channel leading south from the 
controlling works. The water in the raceway operates 
the hghting plant. 

1235 The mechanism that controls the dam and gates is 
operated by different power; the dam by hydraulic 
power, the gates by hand power. There are seven gates. 
North of these there are places for eight more. I don’t 
know whether there is any controlling works to regulate 
the flow of the water between Lake Michigan and the 
Bear Trap dam. 


1236 The cause of the water being lower at one time than 
another in the windage basin and channel is due largely 
to the prevailing winds. <A north wind will raise the 
water in the windage basin, while a south wind has a 
tendency to drive it back. The windage basin is 505 
feet wide at its south end and it narrows to a 160- 
foot channel, which width is maintained during the Rock 
channel, throughout the length of the rock channel. The 

1237 windage basin is 35.2 feet deep. 


I desire to offer the table enclosed in the envelope in 
conformity with the offer and suggestion of the counsel 
for defendant, and make the same a part of my evidence. 
I will not give vou the table. 


Certificate of commissioner taking depositions to depo- 

1238-40 sitions of Clarence O. Davis, Obediah Hicks, Rollin 

L. Reed, T. E. March, Thomas J. Kelly, Homer R. Clark 
and I’, G. Blakeslee, 


208 


1241 Mr. Burrers: We offer now in evidence the deposi- 
tion of Zina R. Carter, taken March 25, 1906, together 
with the stipulations and certificate of the commissioner 
attached, which reads as follows: 


Stipulation as to the taking of depusitions of Zina R. 
Carter, EK. L. Cooley, William A. Vail, Isham Randolph 
and William H. Christie, before Mary EK. Black, Commis- 
sioner, on April 25th and 26th, 1905, entitled in the suit 
of John Brannan vs. The Sanitary District of Chicago. 
Signed by the attorneys for the respective parties, plain- 
tiff and defendant. 


1242-49 Stipulation relative to the taking of depositions, en- 
titled in the case of John A. Shulte vs. The Sanitary Dis- 
trict of Chicago, pending in the Circuit Court of Mason 
County to the August term, A. D. 1905. 

And other cases pending in all counties in the Illinois 
River Valley in which suits are pending against the San- 

1250-53 itary District of Chicago, except Grundy County, de- 
fining the manner in which the said depositions shall be 
taken and providing for their use as evidence under cer- 
tain conditions upon the trial of various causes therein 
mentioned and specified. 

1254 Certificate of Mary EH. Black, Commissioner, to the tak- 
ing of said depositions. 

4255-57 Additional stipulation entitled in the same ease of 
Shulte vs. The Sanitary District of Chicago, relating 
to the taking and preservation and use of said deposition. 


209 


1258 Deposition of Zina R. Carrer, a witness for the plaintiff, 
being sworn, testifies as follows: 


Direct Examination by Mr. Curran. 


My name is Zina R. Carter, age 58, and have resided 
in Chicago for 33 years. Am trustee of the Sanitary Dis- 
trict of Chicago, elected 1895 and have been President. of 

1259 the Board of Trustees for something more than a year. 


The Sanitary District has constructed a channel con- 
necting the Chicago River with the Desplaines River. In 
the state of nature the Chicago River flowed into Lake 
Michigan. The channel of the defendant empties into 
the Desplaines River near Lockport, in Will County. The 
Desplaines River empties into the Illinois. By the junc- 
tion of the Kankakee it forms the [linois River. 


1260 The channel excavated by the defendant is 28 to 29 
miles long and extends through clay, rock and glacial 
1261 drift. The portion of the channel constructed through 
rock is 162 feet wide and 26 feet below Chicago datum. 
The width of the clay channel varies. I cannot state 
1262 the width. It is wider and larger than the balance. The 
slope is two to one I believe. I think the greatest width 
at the top of the earth embankment would be a little 
in excess of 300 feet. Other work, cross section of the 
Chicago River, has been enlarged, and the work per- 
formed necessary to carry the water through the city 
1263 of Joliet. The average width of the widening of the 
-1264 cross section of the Chicago River cannot be stated on 
account of the irregular size originally of the Chicago 
River. As far as the work has been performed the cross 
section is 200 feet in width. Before it was widened the 
Chicago River was very irregular. It is not complete, only 
1265 about two-thirds of the distance between Lake street 
and the junction of the Sanitary channel with the Chi- 


260 


1266 cago River at Robey street. There is a distance of about 
two and a half miles completed to the present time. The 
1267 river has been deepened about eight feet. About one- 
third of the distance of the work yet remains to be done. 


1268 At Joliet the cross section of the Desplaines River was 
increased through the city of Joliet, and change was 
made in the same and the dams that existed were re- 

1269 moved. That work was completed in about January, 
1900. The cross section I think was increased for the 
entire length through the city. Unable to say how much 
it was increased in width or how much deepened. 


1270 Dams number two, and Adams Dam sometimes called 
Dam number one, were removed, and Dam number one 
was reconstructed. I do not recall any other construction 
through the city of Joliet. 


1271 I think there were walls on one side at least construct- 
ed along the river, perhaps on both sides. On the side 
adjoining the I. & M. canal, a construction was performed 
to protect that waterway, covering a distance between 
Dam number one and Jefferson street. There was a 
wall constructed of concrete. The levees were constructed 
by the defendant at certain points between the Bear Trap 
Dam and that part of the Desplaines River known as the 
Upper Basin in Joliet, not, however, for the whole dis- 

1272 tance. I cannot give the length of the levee. 

I have seen the Desplaines River at Lyons. Near Lyons 
a construction was made, what is known as the spillway, 
which was to prevent water flowing through an old ditch 
dug there in years past. Am unable to state how long 

1273 it was in feet. I think the work is concrete although 
the base may have been of stone. The work is located 
near the Desplaines River and was completed by the de- 

1274 fendant in 1893. It was built across the Ogden Ditch. 
The Ogden Ditch carried water from the Desplaines River 


261 


to the Chicago River and the south branch of the Chicago, 
a distance of seven miles. 


After the construction of the spillway any water that 
1275 was stopped from flowing through the Ogden Ditch 
flowed down the Desplaines River into the Illinois River. 
Am unable to say how high the spillway was constructed 
across the Ogden Ditch. J] haven’t any actual knowledge. 
1276 The object was to prevent overflow in the Desplaines 
River passing through the Ogden Ditch into the Chicago 
River. 


1277 At Dam number two, in the city of Joliet the bridges 

1278 were changed. Entirely different type of bridges were 
built. A stone bridge was constructed with piers of stone 
construction. The piers were changed at Jefferson street 

1279 over the Desplaines after the removal of the stone 
bridges, there was a steel bridge placed there. It was a 

1280 little longer than the bridge previously located at said 
point. I have no independent recollection of the length 
of the new bridge the defendant built at Cass street. 

1281 I think the bridge was placed at a different grade, that 
the elevation is greater than the old bridge. How much I 

1282 am unable to state. The elevation was slight, I cannot 
state the exact amount. ) 


The connection between the channel I have described 
constructed by the defendant and the Chicago River is at 
Robey street. It was simply an opening in the clay. 
There are no controlling works located at Robey street; 
the controlling works are at Lockport. 


1285 The channel constructed by the defendant at Lockport 
meets the Desplaines River. The controlling works at 
Lockport consists of a construction that absolutely con- 
trols the flow of water, which is called the Bear Trap 
Dam. The dam may be raised or lowered and thereby 
increase or diminish the flow of the water. There are 


262 


seven complete gates and seven gates yet to be installed 

1284 if I recall correctly. The construction at that point was 
made with a view to installing these gates if necessary, 
seven additional gates. 


1285 The construction I have described was for the purpose 
of carrying sewage and water from the Chicago River 
through the Desplaines and Illinois into the Mississippi 
River. It is permanent in its character. The works I 
have described were completed in 1899. They are under 

1286 the control of the defendant, controlled by its engineer- 
ing department. Isham Randolph is the head of the 

1287 department, controlled by the entire board and engineer. 
The construction, management, direction and use of this 
work has for a period of five years since January 17, 
1900, been under the control of the trustees of the de- 

1288 fendant. Also the same control since January 17, 1905. 


1289 The water from the Chicago River and Lake Michigan 
was permitted to run into the channel I have described 
at Robey street on January 2nd, 1900. On that day the 
Bear Trap Dam and the gates I have mentioned were 
closed and the dam was raised, which condition contin- 
ued until the 17th of January, 1900. When the connec- 

1290 nection at Robey street was made, the water flowed into 
the channel from the Chicago River towards the Des- 
plaines. It flowed until the channel was filled to the level 
of the Chicago River. Through the Chicago River the 
flow was from Lake Michigan to Robey street. Before 

1291 that time a large part of the flow went through the IL. & 
M. canal. In a state of nature it flowed towards Lake 

1292 Michigan. The Chicago River did flow toward the I. 
& M. canal and flowed up to where its pumps were located. 
I could not answer correctly how much water had been 
pumped into the I. & M. canal. 


1293 It took the canal between Robey street and Lockport 


263 


about six days to fill. I was present at the controlling 

1294 works on January 17, 1900. The board of trustees were 
also present, also three commissioners of the state of 

1295 Illinois. On that date the dam at the controlling works 
at Lockport was lowered by permission of the Govern- 
ment of the State of Illinois. It was lowered early in 

{296 the morning, I don’t recollect the hour. When it was 
lowered the water flowed over the dam from the channel 
into the Desplaines River and down the river, I don’t 
know how much water was allowed to flow. 


Since that time, up to January 19, 1905, I have been 
there many times but not at regular intervals. On the 
1297 occasions I have been there the water was flowing over 
1298 the dam. To my knowledge the gates that I have men- 
tioned, between the 17th of January, 1900, and the 17th 
of January, 1905, during a very large part of the time 
1299 have been closed. JI am unable to answer accurately 
as to what part. My judgment on that subject is that the 
gates have not been open at any time except for experi- 
ment to ascertain the actual flow, or for temporary ad- 
justment of the dam. When the gates have been open 
the water was flowing through the rates rather than over 
1300 the dam. I am unable to say how many have been open 
at any one time. The gates have been open at various 
times during those five years. I haven’t any knowledge 
as to the capacity of the flow of the dam and gates on 
those occasions. I know the water did flow over the 
1301 dam and through the gates. 


1302 Recess until 1:30 Pp. m. 
1303 Court met pursuant to recess. 


Mr. Butters continuing reading the deposition of Zina 
R. Carter. 


There has never been a time during those five years 


264 


when I have been present at the works that water has 
not been flowing over the dam or through the gates. The 
controlling works are in charge of the engineering de- 
partment. Mr. Randolph is in charge of that depart- 
ment. 


1304-5 I know Mr. Cooley. He is an engineer and employe 
1306 of the Sanitary District. His duties are largely con- 
nected with this office and his office is in this building. 


1307 There have, since January, 1900, been six men in actual - 
charge of the controlling works. The foreman’s name 
is Blakeslee. Their duties are to carry out the orders of 

1308 the chief engineer. I am not aware that they receive 
orders. from the chief engineer. I cannot answer as to 
whom Mr, Randolph issues his orders. I think Mr. Ran- 

1309 dolph issues an order direct to any man in the depart- 

1310 ment at Lockport. The engineering department com- 
prises all the construction work of the Sanitary District 
and all surveying of every character is conducted by that 
department in obtaining data for the purpose of the 
Sanitary District. 

1312 There is a vast amount of investigation by means of 
surveying necessary to establish routes, find good eleva- 
tions, of given territory that we may desire to have 
knowledge of, as for instance they have been working 

1313 on the Calumet route. By the Calumet route I mean a 
line of territory between Willow Springs and the Calu- 

1314 met River. The survey of the Calumet route was for 
the purpose of ascertaining the condition of that terri- 

1315 tory with the expectation that a channel may be cut 

1316 through that point some time from a point known as 
Sag, a point of the present Sanitary Channel to the Cal- 
umet River. The Calumet River flows into Lake Michigan. 
When the proposed channel is cut it will empty into the 
present Sanitary District channel. -It will increase the 


265 


1317 drainage area of the Sanitary District. I am unable 

1318 to state how much in square miles. The channel will 

1319 be about 17 miles long. It is not determined how wide 

1320 it will be. It is not contemplated to send down the flow 

1321 of water, that is the surface water of the Calumet, but 
the sewage for that section of the territory and sufficient 
water for dilution. 


1322 Relative to the present territory that is drained, it is 
immediately south and consists of a part of the City of 
Chicago, a large part which is now sparsely settled, 
speaking from a standpoint of a city. The remainder 

1323 of the territory has a larger population. There will be 

1324 no increase in the capacity of the stone work in order 
to make the connection by ‘the Calumet route. 


Mr. Curperrietp: I want to now move to strike out 
all of the evidence contained in this deposition with ref- 
erence to the Calumet extension, for the reason that the 
same is merely a projected enterprise, that it has not 
been constructed to this date, and that the testimony 
relative thereto does not tend to prove any of the issues 
in this case, and is purely theoretical upon the part of 
the plaintiff. 


The Court: I think I will overrule the objection. 
To which ruling of the court, the defendant by its 
eounsel, then and there duly excepted. 


1325 Since the 17th day of January, 1900, the controlling 

1326 works has been under the chief engineer. Since the 
17th day of January, 1900, and during the last year, a 
report was made direct to the president of the board 
showing the flow during the period covered by the report 
somewhat in excess of 250,000 cubic feet per minute. 


Mr. CHIperFietp: We move to strike the answer as 
not being responsive to the question. 


266 


1327 Same objection to the question: Objection overruled: 
To which ruling of the court, the defendant by its 
counsel, then and there duly excepted. 


1328 My recollection is that the report was handed to me 
1329 by Mr. Cooley. No one has charge of the flow through 
the controlling works except the chief engineer. 


1330 My knowledge as to what officers or agents have, under 
the direction of the board, taken gauge readings and 
made reports is general and not specific. As a matter 
of supposition Mr. Cooley has more to do with that than 
any man in the engineering department. Mr. Cooley has 

1331 occupied that same position in the engineering depart- 
ment during the last five years. 


I do not know how often the flow through the controll- 
ing works is read and reported. My idea is there is no 
reading except on occasion of a change of the gates. I 

1332 think Mr. Cooley has more general knowledge of the 
actual flow than any other man connected with the dis- 
trict. When a change is made in the quantity of flow 
from the Bear Trap Dam, it is directed by the chief engi- 
neer. I think it is only on a very rare occasion that he 

1333 has ever had any direction from an officer of this board. 
There have been a small number of instances where I 

1334 have advised with the chief engineer, regarding the flow 

of water over the dam. They have occurred when there 
was difficulty in navigating the Chicago River by reason 
of low water. I could not give the date of it. My answer 

1335 refers to the last year and a half. 


The Sanitary District of Chicago has a clerk that keeps 
the records of its proceedings as a corporate body. The 
clerk is Stephen D. Griffin. The Sanitary District does 
not make a record of its flow of water over the Bear Trap 
Dam and through the controlling works, to my knowl- 

1336 edge; no record kept unless it is in the engineering de- 


267 


partment. I have never seen any such record. It would 

1337 be under the direction of the chief engineer. I person- 
ally have no knowledge of it or how often a report is 
made to the chief office of the defendant in the engi- 
neering department. 


1838 Between Summit and the controlling works at Lockport 
in the process of its werk to the Desplaines River, it 
changed the course of the river there. I was not con- 

1339 nected with the Sanitary District at the time that work 
was performed. I never saw the river in its original 
state, in its old bed; therefore I could not give an intel- 
hgent answer to the question. 


The waters of the Desplaines River flow towards Lock- 
port from the spillway near Lyons or Summit. From 
the spillway or the Santa Fe bridge near the spillway to 
a point opposite the Bear Trap Dam, the waters of the 
Desplaines River flow since the 17th of January, 1900, 

1340 in an artificial channel from Joliet. Cannot state the 
depth of the channel. All of the works and embankments 
that I have referred to between the lake and the end of 
the embankment at Joliet, constitute together what is 
known as the Sanitary District work. 


The paper shown me as Plaintiff’s Exhibit ‘‘7’’ has 
my signature attached hereto. It was served on me Mon- 
day of this week. I don’t remember the name of the 
gentlemen who served it. 


1341 Cross-Exanunation by Mr. Chiperfield. 


I said in answer to the question that the purpose of 
the construction of the Sanitary District channel was 
to convey the sewage of the City of Chicago into the Des- 
plaines River. That is not the only purpose of the con- 
struction of the Sanitary District. That is the primary 
purpose. A further purpose is that the channel was very 


268 


largely increased in size for the purpose of making it a 
navigable channel, a ship canal. The design of convey- 
ing the sewage into the Desplaines River was to prevent 
the flow of the sewage into Lake Michigan because the 

1342 waters there were used for drinking by the people. of 
Chicago. 

There was a further purpose in the prevention in the 
spread of disease produced by an impure supply of drink- 
ing water. 

I think there has been expended in the construction 
of this improvement a little over $38,000,000. 

1343 It is true and correct that the control of the dam is 
under the direction of the chief engineer, except on the 
occasion that some trustee or officer of this board, other 
than the chief engineer, may have directed a temporary 
raising of the Bear Trap Dam. The Chicago River is 
under the control of the federal government. It is not 
true that the Sanitary District is in charge of all the 
works from Lake Michigan to the Desplaines River. The 

1344 federal government has at no time ceased to assert and 
assume the regulation or to direct the amount of flow 
through the Sanitary District channel of the waters of 
the Chicago River. At all times since the opening of the 

1345. Sanitary District channel there has been supervision, 
regulation and control of the trustees of the Sanitary 
District by the federal government through the secretary 
of war. 


1346 It is not true that water has at all times flowed through 
the gates in the controlling works at Lockport. There 
are two methods of letting the water out of the channel 
into the Desplaines River, one over the Bear Trap Dam 
and the other under the gates when raised. There is 
no necessity for putting water through the gates at any 
time when the Bear Trap Dam is down or is in use, be- 


269 


eause it may be put down sufficient for all purposes. When 
the Bear Trap Dam is lowered to its full capacity so that 

1347 the flow is at its maximum, the flow would be greater 
than the secretary of war’s permit allows. 


1348 Re-direct Examination. 
(Read by Mr. O’Conor.) 


There has been expended by the defendant in develop- 
ing water power $500,000. That hasn’t anything to do 
with the health of the citizens of the defendant district. 


The restrictions mentioned exercised by the govern- 

ment are active at all times; under the. permit of the 
1349 secretary of war, the Sanitary District has no right to 
turn in water in excess of 300,000 cubic feet per minute. 


300 Navigation on the Chicago River usually closes in De- 
cember, usually opens at any time from the first of April 
to the 15th of May. The restriction of the war depart- 
ment applies to the defendant corporation when naviga- 
tion is closed. The permits are in writing. I have seen 

1351 them. I am quite willing the permits should be exam- 
ined by the attorneys and copies made. I am quite will- 
ing to furnish any documents I am advised to by the 
Sanitary District Attorney. 


My understanding of the order of the Secretary of 

War is that it fixes the maximum flow. The original per- 

1352 mit granted the right to flow 300,000 cubic feet of water 

through the Chicago River; afterwards an additional re- 

striction was issued by the Secretary of War reducing 

the flow to 250,000 cubic feet per minute. The original 

permit covered the whole year. The restriction, I am not 

1353 clear, just what the language is now. I would not like 
to say. 


The depositions are being taken in the Sanitary Dis- 


270 


trict office in the City of Chicago. The orders of the Sec- 

1354 retary of War to which I refer, are in the Sanitary Dis- 
trict office, in the same building on the same floor, about 
60 feet distant. They are in a vault eontrolled by the 
elerk of the district. 

1355 I am quite willing to have those papers produced here 
if the attorneys for the District so advise. If I do not 
produce them my refusa! so to do will be caused by the 
advice of the attorneys. ) 


The purpose of the widening of the Chicago River and 

1356 increasing the cross section of the Chicago River is to 

provide a cross section that will permit the flow of 300,- 

000 eubic feet of water through it without interfering 
with navigation. 

Deposition signed and subseribed to before the Com- 
missioner. 

Mr. CurprrrizLp: Now, following is the permit of the 
Secretary of War, which they have been calling for, which 
is as follows: 

Whereas, under date of May 8, 1899, the Secretary of 
War granted permission unto the Sanitary District of 
Chicago to open the artificial channel from Robey street, 
Chicago, to Lockport, and caused the waters of Chicago 
River to flow into the same, upon the following condi- 
tions inter alia: | 


Two: That if, at any time, it becomes apparent that 
the current created by such drainage works in the south 
and main branches of the Chicago River, are unreason- 
ably obstructive to navigation or mjurious to property, 
the Secretary of War reserves the right to close said dis- 

1357 charge through said channel or to modify it to such ex- 
tent as may be demanded by navigation and property in- 
terests along said Chicago River and its south branch; 


And whereas, the Seeretary of War subsequently di- 


271 


rected said Sanitary District of Chicago to regulate the 
discharge of water into the Chicago Drainage Canal so 
that the maximum flew through the Chicago River shall 
not exceed 200,000 cubic feet per minute, from midnight 
to 4 ep. m., nor 300,000 cubic feet per minute, from 4 Pp. Mm. 
to midnight ; 

And whereas, said Sanitary District of Chicago has ap- 
plied to the Secretary of War for permission to increase 
the flow between midnight and 4 p. m. daily to 250,000 
eubie feet per minute, and the chief of engineers has ree- 
ommended that the increase applied for be granted, but 
that the rate of flow from 4 Pp. m. to midnight be reduced 
to 250,000 eubic feet per minute, so that the flow through 
the Chicago River shall not exceed 250,000 cubie feet per 
minute throughout the 24 hours of the day; 


Now, therefore, this is to certify that in accordance 
with the recommendations of the chief of engineers the 
Secretary of War hereby gives unto said Sanitary Dis- 
trict of Chicago permission to regulate said discharge so 
that the maximum flow through the Chicago River shall 
not exceed 250,000 cubie feet per minute throughout the 
24 hours of the day, upon the following conditions: 


1558 1. That this permission shall be in lieu of the present 
authorized rates of flow as stated above. 


2. That the permission herein given shall be subject 
to such modification as in the opinion of the Secretary of 
War the public interests may from time to time require. 


3. That said Sanitary District of Chicago shall be re- 
sponsible for all damages inflicted upon navigation inter- 
ests by reason of the increase in flow herein authorized. 

Witness my hand this 5th day of December, 1901. 


(Signed) Wm. Cary SANGER, 
Assistant Secretary of War. 


Sad 


272 


1359 Ropert UNzicKer, a witness for the plaintiff, 
sworn, testifies as follows: 


Direct Examination by Mr. O’Conor. 


My name is Robert Unzicker, 64 years old; reside in 
Peru; engaged in the drain tile business and have lived 
1360 there 30 years. Formerly a brick manufacturer. 


T know Water street in Peru. Was one time a grain 

buver; elevator was located on Water street. I ran it 
1361 about six years. 

T knew Sam Waugh and know the land lying south of 
Peru; have been over the land a couple of times. Sam 
Waugh farmed the land between 1890 and 1900. I bought 

1362 corn of him. Was in the grain business in Peru in 793 
1363 and ’95. Could look over the lands from my place of 
business in Peru from the elevator. The land was used 
1364 for raising corn. J am referring to land in Section 21. 
Pretty near all of it was in corn. During those years 
I was not out on the land. JT was there afterwards in 
1365 1900, 1901 and 1902. 


T learned that the Sanitary District water was coming 

into the valley in 1900. JI have ben familiar with the Ilh- 

1366 nois River since 1900. Do not go on to the river much, 

but go down to the bridge to watch the river. I have 
noticed the difference in the water since 1902. 


Q. Now, just describe to the jury in your own way 
what conditions you have noticed? 


Mr. Crrperrirtp: JI want, in order to preserve the 
question, to object to anything that has happened subse- 
quent to five years from the 17th of January, 1900. 

Objection overruled; to which ruling of the court the 
defendant, by its counsel, then and there duly ex- 
cepted. | 


273 


A. Why, I noticed that the water, after the water 
came in from the Drainage Canal it was a great deal 
higher. We did not notice it so much the first year, but 
the second and third year it got so we thought it was 
from three to four feet higher than it used to be. 


1567 It goes out quicker over the bottom lands than before. 
Of course the water is so much higher all the time than 
before after a rain. They don’t raise so much corn as 
they used to. 


Q. Take it in the year 1900 in the month of January, 
1368 prior to the turning in of the water by the Sanitary 
District, have you an opinion as to what the fair cash 
market value of this land located in Section 21 was? A. 
Well, I have an idea it was worth about $100 an acre 
then. 
Motion to strike the answer; motion sustained. 


IT never gave it a thought then what it would be worth, 
no, sir. ‘They raised number three or number two corn 
during the two years I mentioned. We shipped some 

1369 graded number three and some number two. The best 
they raise is number two. 


Cross-Examination by Mr. Chiperfield. 


The highest grade of corn I know of is number two. 
1370 The general run ig about number three. There is a 
ereat deal that goes lower, number four and below num- 

ber four it is no grade. 


I do not know where Section 21 is located. I never 

1371 knew what section it was before. I could not tell how 

much land Mr, Waugh farmed. I don’t know where his 

lines were. I don’t know how much he had over there 
aside from the fact he was raising corn. 


1372 JI had observed the river for some time before the San- 
itary District water was turned in, I have no record of 


274 


what I observed. Before the Sanitary District channel 
was opened the Iinois River was a sluggish stream and 
for a short time in the summer months a foul odor would 
arise from it. At the present time the current is very 
much swifter, the stream is stronger and I think there is 
more water. At Peru the stream is about 300 feet wide 
and sometimes there is a pretty swift current there. The 

1373 current is about three or four miles an hour, as fast as 
aman would walk. Before the District water was turned 
in there was no curernt. The river was sort of a stag- 
nant pool. I have seen high water on the river before 
1900. 


1374 My place of business was on the hill, 125 yards higher 

1375 than Water street. Prior to the building of the C., B. 
& Q. water got into the cellars on Water street. I have 
seen the water that high since 1900. The highest water 
on the Illinois River came in the year 1883. I have seen 
very low water in the Illinois River. I know about the 

1376 gauge being on the bridge, but don’t know how low it 

1377 got. I don’t remember that, The lowest water I ever 
saw was in 1901. I could not tell you any month when 
the river was higher since 1900 than it was for the same 
month previous to 1900. 


It is not fair to compare the river during a month like 
August or July with a flood month like February or 
March. My opinion is that it was higher since the water 

1378 came in. I don’t remember any dates. I cannot remem- 
ber June, 1892, or June, 1902. 


I remember sometimes before the Sanitary District 
water was turned in of the water being high when there 
was nothing raised on the bottoms. At those times the 

1379 river would extend from bluff to bluff, about a mile 
wide. All of the land of Mr. Waugh would be overflowed 
and the boats could go anywhere on the bottoms. 


219 


1380 CHarLes Castenpyck, a witness for the plaintiff, being 
sworn, testified as follows: : 


Direct Examination by Mr. O’Conor. 


My name is Charles Castendyck; have resided in Peru 

30 years, and am in business selling farm machinery. 

1381 Have been in business in Peru since 1878 on Water 

street two blocks and a half east of where the bridge 

crosses the Illinois River. Between 1880 and 1887 I was 

in business right at the bridge, since then at the former 
location, 


1382 J reside on 2d street in Peru. That would be two blocks 
north from Water street and about 100 feet higher from 
Water street. 


I know the land Sam Waugh was farming from 1890! 
to 1900. It was south of the river and west of the branch 
of the slough farthest east. The land lay east from the 
bridge across the Illinois River at Peru. Between 1890 

1385 and 1900 saw the land every day from Water street. It 

1384 was farmed in corn. The whole piece was planted in 
corn. During that time I was on the land a great many 
times. The soil was sandy loam, rich, and could be eulti- 
vated nicely. I was on the land when it was actually un- 
der cultivation and saw the corn growing there. It was 
just corn, very good crop usually. 


1385 From 1890 to 1900, I was familiar with the flow of the 
Illinois River around Peru near the land. I would see 
the river probably twice a week. I knew since 1900 of the 
fact that the Sanitary District sent water down through 
this valley. The water in the river has been higher all 

1386 the time. It don’t get as low any more as it used to and 
it stays higher longer. It takes longer to fall, it is slower 
falling. 


T am acquainted with the uses made of this land since 


276 


1902. Since that time I have been over it two or three 
1387 times a year. I saw the land this year. There is corn 
on part of it and the rest not. cultivated is in weeds. 


1388 This year about half of the land is in corn. Last year 
I should guess more than half. I never measured the 
acreage on the bottoms either year. The corn this year 

1389 is in patches, that is, there is a piece of corn and then 
there is a piece of weeds. 


Q. What, in your opinion, was the fair cash market 
value of that land in the month of January prior to the 
turning in of the Sanitary District water? 


Mr. CurperFietp: Wait a minute, I object to the basis 
of comparison. The question is what was the fair cash 
market value of that land. 

Objection overruled; to which ruling of the court the 
defendant, by its counsel, then and there duly ex- 
cepted. 

13890 A. Probably $90. 


Q. What was the fair cash market value of that land 
in 1900, after the drainage was turned in, considering 
all of the facts that you now know in relation to the flow 
of the Illinois River? 


Mr. Criprrrietp: I want to object, if your honor 
please, as being incompetent, irrelevant and immaterial 
and no proper foundation has been laid, and that the 
question does not embrace the correct test, but is asking’ 
the witness to take into consideration matters which have 
accrued since the commencement of this suit and matters 
of which he and no other person could have had knowl- 
edge upon the 18th day of January or approximately 
about that time. 

Objection overruled; to which ruling of the court the 
defendant, by its counsel, then and there duly ex- 
cepted. 


277 


Mr. O’Conor: @. Did you understand my question, 
Mr. Castendyck? 

A. Why, what was the value of the land after the wa- 

' ter was turned in? 

Q. Inthe year 1900? A. In view of all— 

Q. In the month of January subsequent to the turn- 
ing in of the Sanitary District water, considering in mak- 
ine your answer the conditions as you now know them, 
taking them back in other words to that date? 


1391 Mr. Currerririp: I want to renew the objection to 
the question as re-stated. 

Objection overruled; to which ruling of the court the 
defendant, by its counsel, then and there duly ex- 
cepted. 

A. Why, I should say it was worth less than half. 
Mr. O’Conor: Q. What would the land be worth that 
is not planted to anything? 
A. That I would not think had any value from an 
agricultural point of view. 
Mr. CurrerFietp: I move to exclude the answer as no 
eriterion of value in this case. 

Motion denied; to which ruling of the court the de- 
fendant, by its counsel, then and there duly ex- 
cepted. 


Cross-Examination by Mr. Chiperfield. 


If anybody in the month of December, 1899, had sug- 
gested the fair cash market value of that land was $100 
1392 an acre, I would not have been amazed at the sugges- 
tion; $100 in 1900 and in 1899 was not considered a tre- 
mendous price even for top lands or prairie lands. I 
think I know of a piece of prairie Jand in La Salle County 
without improvements that had sold for as much as $100 

in December, 1899. I think there is a farm gold north of 
town for about $100, the Winston farm. No, the Winston 


278 


farm was sold after that. I do not definitely recall the 
year. It was before 1899 or 1900, I think it was about 
1393 in the early nineties. It was not unimproved land. 


It is seldom that a piece of land is sold without any 
buildings on it, very seldom. J understand the land in 
this river bottoms had no buildings on it, no sheds, barns, 
fences or improvements of any kind. The buildings Mr. 

1394 Waugh occupied were at the foot of the hill. 


1395 I do not mean to have the jury understand that any- 
where on Section 21 there was a single building of any 
kind. I don’t know where the section line runs. The 
place Mr. Waugh occupied is on Section 28. The water 

1396 sometimes gets up in the barn yard, but at that the 
eround is three or four feet higher than the field. 


I just told you I don’t know whether there were any 
farm buildings on 21. I don’t know where that line runs. 
There are buildings there, but whether on Section 21 or 
the next section south, J don’t know. 


I don’t know of any bottom lands which have changed 
hands at any time for as much as $30 an acre before 
1900. I take into consideration, among other things, the 
rental value of this land prior to 1900. I have no idea 

1397 what rent Waugh paid. I don’t know whether he paid 
$500 a year. If it was rented for slightly in excess of 
$1 an acre that would not be any return on an investment 
of $100 after taxes were deducted. 

Q. If the rental] value of this land was slightly in ex- 
cess of $1 an acre you would then say that on that basis 
the market value would be $100? A. I am basing my 
valuation on what the land would produce. 

Land that would not bring over $1 an acre certainly 

1398 would not be worth $100 an acre. It would not bring 
over $10 or $12 an acre. 

Between January 17th and the 18th day of January, 


279 


1900, there would be a change in the market value of this 
land on account of the turning in of the water in view of 

1399 the facts that we now know, although it was not under- 
stood at that time. There was no change then. I qualify 
my answer to the value of the land at this time by saying 
as an agricultural matter. I do not see anything it is fit- 
ted for except agriculture, 


1400 I know it is underlaid with coal, but how much I do not 
know. I haven’t any idea on that, I can only tell what 
the surface is. If it is underlaid with a fine coal, a fine 
vein of coal located where it is near La Salle and Peru on 
lands that are at the edge of the field, the coal would 
certainly have a large value in January, 1900. I do not 
know that the value of the coal in January, 1900, was 
$100 an acre. J haven’t any idea. I suppose it would 
have a large and substantial value at that time. I exclude 
that from my calculation because I know nothing about it. 


During the time I lived in Peru I have had a general 
knowledge that this land and all other lands similarly 
1401 situated was underlaid with a splendid vein of coal that 
was highly in demand when marketed. I exclude that 
from my consideration because I do not know anything 
about it. I do not know how much coal comes out of an 
acre or the cost of getting it out and all those things. 

T am not a coal operator or a coal miner. 


Q. Then are you qualified to speak as to the value of 
this land for a coal proposition? A. No. 

Q. Upon the question of what this land is worth you 
say you cannot put it for a coal proportion in January, 
1900, you say vou cannot put it into figures? A. I know 
nothing about that. 

Q. Do you mean to say that if your advice had been 
sought as te your opinion of the fair cash market value 
along the latter part of January, 1900, of this land as a 


280 


coal field, that you would not then have had some opinion 
that you would have been willing to have stated at that 
time? A. I don’t think I would. 


Q. Would you have been forced to the conclusion at 
that time that you have no opinion of any kind upon that 
subject? A. Why, yes, I would not have had an opin- 
ion because it was a thing I knew nothing about. 


I know that this land is held by the La Salle County 
Carbon Coal Company as a coal field, but exclude that 
fact in estimating the value because I do not know what 
the coal is worth. I understand even though I do not 
know what it is worth that it adds a large value. 


Q. Then why, Mr. Castendyck, do you limit your idea 
of value of this land simply to the one purpose of raising 
corn when you know of the use that it is valuable for coal 
land in another particular? A. I said several times be- 
cause I know nothing about that feature of it. 


@. But you do know in fairness that it does have a 
large value? A. It has a value, yes. 


I don’t know that it has a value in excess of one-half 
the price I named. I have never been engaged in the coal 
business. I have had information as to the value of coal 

1403 lands, but have no information that would enable me to 
fix a value upon those lands as a coal field proposition 
in January, 1900. 

In observing the river I had no gauge. I noticed the 
ice breaker on the bridge, on the upstream side of the 
bridge. There is a gauge on the down stream side, I 

1404 never made any observation of that. 

I remember the high water of 1883. I think it has been 
quite as high since, but do not recall just which year now. 
T remember the high water of 1892. I don’t think the 
high water of 1902, was not as high as the high water of 


281 


1883 or 1892, by two feet. I would not think there would 
be a foot difference. 


1405 Before the Sanitary District channel was opened in a 
general way I knew the lay of this land. I knew the bank 
of the river over on that side and saw the river in ex- 
tremely low water. In extreme low water in the summer 
time before 1900, the water would be about 12 or 14 feet 
below the banks. I mean the bank of the river along in 
front of Water street, across the river immediately oppo- 

1406 site Water street. The land on the north side of the 
river opposite Waugh’s at that time was five or six feet 
lower. Across the river to the land on the south side the 
water would get 12 or 14 feet lower than that land, at its 
lowest stage as I have seen it. I do not know that 12 or 
14 feet lower than the top of that bank would be lower 
than the bottom of the river. I do not know that the ele- 

1407 vation of the bank of the river at this point is 135 feet 
below Chicago datum and that the bottom of the river 
with the fowing banks full is not over 10 feet deep. When 
the bank is full the river is over 30 feet deep. 


I don’t know how large the sand bank is in front of 
1408 this land. I don’t know how deep the water on the bar 
is. Water street is eight or ten feet above the Waugh 
land. Low water at Water street is 20 feet below Water 
street. When the water comes up as high as Water street 
there would be a rise of 20 feet. I think there is a dif- 
ference of 20 feet between high and low water on the Illi- 
nois River; 25, I think, would be placing it high; 22 or 
23 feet is the extreme. I have seen the water higher than 
Water street. On the lowest place in the street there 
was six or eight inches of water and from that point to 
low water would be some 23 feet. 
1409 I would not think that from the level of Water street 
to the lowest water that has been known in the Illinois 
River is less than 15 feet. I never made any measure- 


282 


ments or saw any measurements made. I think the water 
would be 12 feet lower than the Waugh land in low wa- 
ter. If the level of the Illinois River at the Waugh land 
at low water is 12 feet below the top of the bank to the 
land, the addition of four feet of water would still leave 
that water eight feet below the top of the bank, would 
1410 still leave eight feet between the surface of the water 
as it is added. Four feet of water above the lowest I 
have seen would not get anywhere near Waugh’s land. 


Prior to 1900, during the months of the summer, the 
average stage of water would be about two feet above 
low water; J think as much as from four to six feet. I 
know that before that time the Illinois River always got 
low during the summer, came within four or six feet of 

1411 the lowest water. If four feet would be added to the 
water then in its usual condition, that would still leave 
the banks eight feet out, and if four feet more was added 
tt would still leave the bank four feet out. 


1412 The current in the Illinois River since the Sanitary 
District water was turned in is very much stronger. 
When it is high it is moving at a rate of about four miles 
an hour, I think the water is high now. The water has 

1413 been rising since the rains for some days. There has 
been approximately a three foot rise in the water during 
the past thirty days. At the present time the current is 

1414 flowing three miles an hour. I have paid no attention 
to the river in particular to get these things. 


I saw the low water of 1901. I cannot recall definitely 
1415 if there was low water in July and August of that year. 
I think the water was very low that year. 
1416 The court took a recess. 


1417 There was only a few feet difference between the low 
water of 1883 and the low water of 1901, would say three 
or four or five feet; I would say there was a great deal 


283 


more difference than nine inches. I would not say that 

1418 the high water of 1883 was a foot higher than the high 
water of 1892 or that the high water of 1883 was three 
feet higher than the high water of 1894. 


l mean there is a general higher stage of water now. 

1419 I have not paid any attention to the rainfall or made 

any measurements. I know when it rains heavily the 

river rises, sometimes rises several feet. I do not know 

the average stage of rainfall, average amount of rainfall. 

I do not know whether last year there was 40 inches of 

rainfall when the average is about 30. I don’t know 

whether in 1907 there was 38.79 inches of rainfall or that 

- in 1902 there was 46 inches of rainfall. JI don’t know 

1420 what the rainfall of the various years was. When the 

rainfall is heavy it has a corresponding effect on the 

stream and when there is a deficiency it has a corre- 
sponding effect of lowering the stream. 


Re-direct Examination by Mr. O’Conor. 


It takes longer now for the river to fall than it for- 

1421 merly did. I don’t think there is any difference in the 

value of the coal on the 17th of January as compared 
with the 18th. 


Re-cross Examination by Mr. Chiperfield. 


Cannot give you any instances when the river has risen 

1422 more rapidly. I know that there might be some differ- 

ence with reference to the taking off of the timber and 

tiling the land that effects the rapidity of the discharge 

of the river. I think that will affect the flow in the river 
some, naturally. 


284 


1423 Orro Haun, a witness for the plaintiff, being sworn, tes- 
tifies as follows: 


Direct Examination by Mr. Butters. 


My name is Otto Halm; IJ live three and a half miles 
south of La Salle; age, 38 years. I lived in Section 21 
before 1900. Worked for a Mr. Waugh husking corn 

1424 there twice, I think it was in 1894 and 1898. I am farm- 
ing now. 

1425 JI husked one patch of 12 acres and the other patch was 
20 acres that I worked in. There was timber on the land 
in some places where there was no corn. Outside of the 
timber it was all corn. The corn was planted in different 

1426 pieces. 

There was a lot of different farmers farming different 
patches; all one field all the way through. There were 
teamsters farming there from town. Mr. Waugh did not 
farm it all. Some patches of 12 acres and some of 20 
acres. The corn was a good stand and good yield. Some 

1427 of the corn had weeds in it. I did not notice any place 
where it had been drowned out. The corn yielded 60 to 
80 bushels to the acre. I wag on the land once in a while 
between 1890 and 1900. I used to drive through there 
once a week or once or twice a month. Excepting 1892 
the corn that was growing on the land was good. A good 

1428 stand and good yield; jooked good, healthy and strong. 

Since 1900, I have seen the land once or twice a year. 
It looks about two-thirds in weeds and the other third in 
eorn. This year about one-third in corn. The last few 

1429 years the corn was soft. I don’t know how much it 

1430 turned cut to the acre. The corn raised on the high 
spots and weeds on the low spots. 


1431 Have noticed the condition of the water in the river 


285 


before 1900. The difference since is that it is higher up 
in its banks and stays up longer. 

1432 I have an opinion as to the fair cash market value of 
the farm lands about the cities of Peru and La Salle in 
this county during the year 1900. 

1433 @. Have you an opinion as to what this land to which 
your attention has been called, being the land in Section 
21, east of McCormick Slough, south of the river, and 
west of the river was worth? 

1434 Mr, Currerrietp: Object on the ground no sufficient 
foundation has been laid. : 

Objection overruled; to which ruling of the court the 
defendant, by its counsel, then and there duly ex- 
cepted. 

A. From $90 to $100. 

1435 Q. Now, have you an opinion, Mr. Halm, as to what 
that land upon which crops were grown, as you saw it, 
what that land, same Jand was worth subsequent to Janu- 
ary 17, 1900, after the water was turned in? A. You 
mean where crops grow now? 

(. Where there was crops, where there was corn 
erown on it; how much was that worth per acre, the fair 
cash market value of it? 

Mr, CuiPerFieLp: Object to it, no proper foundation 
laid and it refers to matters that have occurred since 
the commencement of this suit and does not embrace the 
proper test of value of the land. 

Objection overruled; to which ruling of the court 
the defendant, by its counsel, then and there duly 
excepted. 

A. About $40 to $50 an acre. 

Q@. Now, how much was the portion of the land upon 
which no crops have been grown or were growing when 
you saw it, how much was that worth on January 17, 1900, 
its fair cash market value? 


286 


1436 Mr. Curprrrietp: J want the same objection to stand 
to that question, if I may have it, 

Objection overruled; to which ruling of the court the 
defendant, by its counsel, then and there duly ex- 
cepted. | 

A. Well, I don’t know. It ain’t worth nothing. 


Cross-Examination by Mr. Chiperfield. 


I don’t think it is worth anything for raising corn. 


Q. You know the test is, as I. understand it, and at 
least the one which I want you to adopt, is not for 
any single purpose, but for every purpose, and the pur- 
poses for which the land may he fitted. Now, if that is 
the test and if this land is underlaid with a high grade 
merchantable and marketable coal, it has a greater value 
than that, hasn’tit? A. Twas figuring on raising crops. 


Q. I know you were and I am asking you now to take 
into consideration the value of this land as a coal prop- 
erty. You know, don’t you, this land is owned by the La 
Salle County Carbon Coal Company? A. Yes, sir. 


@. And vou know they hold it as a coal property, 
1437 don’t you? A. IT don’t know what they hold it for. 


I know that this is a coal field in connection with the 
La Salle County Carbon Coal Company. If it was under- 
laid in 1900 with 3,500 to 5,000 tons of coal, to every acre, 
it had a large value at that time for coal. I did not take 
into consideration its use for coal purposes. I simply 
took into consideration if a man wanted to raise corn, not 
1438 its market value, but the return it might bring in. 
IT know the Cox farm situated about two miles west of 
Tonica, containing 160 acres, being sold for $125 an acre 
1439 somewhere around 1901, 1902 or 1900. 


1440 I have no connection with the plaintiff except selling 
them a few props. 


287 


The pieces that I husked in 1894 and 1898 were 20 acres 
and 12 acres. The biggest part of the land was husked 
by Waugh, but there were four or five other different 
parties farming a part of it. 


1441 JI think there is some change in the river now. The 
current is swifter at times. There is a bank along the 

1442 river by the Waugh land. I could not tell how high that 
bank was above low water before 1900. My idea is four 
or five feet, maybe six feet. I have not seen the river 
lately. 


Where I was husking in 1898 and 1894, I did not see 
any corn that would go 120 or 125 bushels to the acre. 
No places in the patch I worked where land two feet 
higher than the rest where the corn would be poorer than 
1443 the other corn, nor any place a couple of feet higher 
where the corn would only average 40 bushels and a cou- 

ple of feet lower 120 or 125 bushels. 


Kpwarp Frtmmwatp, a witness for the plaintiff, being 
sworn, testifies as follows: 


Direct Examination by Mr. O’Conor. 


My name is Edward Friewald; I live about a mile and 
1444 a half south of Water street in’Peru. Have lived there 
27 years. 


I know the land at one time farmed by Waugh. I don’t 
1445 know what section the land is located in. I have been 
1446 on the land that Waugh farmed and farmed a part of it 
myself in 1906. In that year I rented 20 acres and planted 
about half of it. The half I planted was planted the last 
1447 of May and the first of June. In the fall I husked what 
I planted, but never kept track of the character of the 
corn. It was pretty fair. It was not as good as it ought 

to be, though. 


288 


In 1906, there was quite a bit out. The high spots were 

1448 farmed. All the high spots were planted, but the low 
ones they could not work. The year after I tried to farm 
it, but I did not get it in, the water came up and drowned 
us out in May. That was 1907. 

1449 JI was not particularly acquainted with the Illinois 
River before the Sanitary water was turned in. I would 
see it a couple of times a month going to town. I noticed 
a difference in the river and the river bottoms since 1900. 

1450 The water is higher now than it used to be. In the 
spring it would not dry off, it would stay up high enough 
to keep the ground wet. I think more water comes in 
some way and is held up. 

1451 JI noticed the land this year. It is pretty hard to tell 
how much of the land is in crop this year; they just 
farmed the high spots. 


1452-53 Discussion and recess of court until November 18, 
1912, at ten a. M. 


1454 November 18, 1912, 10:00 a. m, 


Epwarp FrRinwaup, a witness for the plaintiff, recalled 
for further examination, testifies as follows: 


Cress-Examination by Mr. Chiperfield. 


I am 29 years old and wag raised on the farm. Since 

that time I have been engaged more or less in farm work. 
1455 Am working at home for my parents farming 80 acres. 
1456 Our land is on the high land on top of the hills about 75 
or 100 feet higher. I have known the high land in Sec- 
1457 tion 21 since I was a kid. T recollect the bottoms be- 
1458 tween 1890 and 1900. T don’t know much about the con- 
ditions there before 1900. I don’t remember just what 
age I started to work down there, just remember a little 
1460 about it. Those years the Illinois River was pretty low. 


289 


1461 I noticed the bank. The water would be three or four 
1462 feet below the bank or a little better, possibly five or six 
feet. I think it was four or five feet. 


I know where Water street at Peru is. I never meas- 

1463 ured it. The water is not overflowing the bend now. It 

1464 is about a foot below. The water now is low, the river 

is lower now than it was, you might say, for all summer. 

It was once down a little bit lower, not a great deal. I 

don’t know whether it has raised three feet in the last 

1465 thirty days. Pretty hard to say whether it is an inch 

or a foot. It raised a couple of feet, I guess. I expect it 
raised three feet, 


When I first knew the river in low water it used to be 

four or five feet below the top of the bank. To-day it is 

a foot below the top of the bank. In the last 30 days it 
1466 has raised three feet. 


In 1906, I had 20 acreg rented, a dry year. 1907 was 

1467 a good year for good crops; 1907, could not get in there, 

the water was high. It commenced to rain the latter part 

of May; after that the water rose and came awful fast. 

In 1906 got in about 20 acres. It was fair corn. I have 

1468 no idea how much it went to the acre. I sold the corn. 

T don’t remember how many loads. Shelled prairie corn 

with it and mixed it so I eannot tell the difference. I 

1469 don’t remember how the corn graded. At the elevator 
they never said nothing about it. 


IT observed the current in the river since 1900, I don’t 

1470 know that it is flowing any faster. I talked with Mr. 

McPhedren last week. Before 1900 did not pay much at- 

tention to the current, not old enough to pay much atten- 
tion to it. 


1471 In 1906, a number of other fellows were farming’ 

1472 patches of ground, may have been five. I don’t know 
how much corn [ paid for rent. I put it in the crib at the 
Waugh farm. 


290 


THomas H. Hatsrnap, a witness for the plaintiff, being 
sworn, testifies as follows: 


Direct Examination by Mr. O’Conor. 


My name is Thomas Halstead; I live in Peru, 60 years 

1473 old and J resided in Peru 26 years. Have been engineer 

at the electric light and water works plant during the 

past year. Before that I was threshing and shelling corn. 

I owned part of the threshing outfit; in that business 
about thirty-seven years. 


1474 The past 23 years I lived on the hill in Peru. I know 
the land that was farmed by Waugh. I have known it 
for something like 20 years back. I have shelled corn 
over there and have threshed on the hill, I cannot tell 

1475 how long ago it was. It was fifteen years ago anyway. 
I was there on more than one occasion. IJ think I was 

1476 there within 10 or 12 years. Shelling outfit was located 
next to the edge of the hill up on the high ground. 


1477 Those years corn was raised there. It was all corn 
outside of the timber land. Pretty good crops, maybe 90 
bushels an acre. 


1478 I did shredding just west of the Illinois Central tracks, 
for the plaintiff. Took my outfit right in on the land. It 
1479 consisted of a traction engine and a shredder. I think 
it was about 13 years ago; it wag in the winter time. I 
was there pretty near all winter, the outfit stayed there 
1480 a month; that was before the Sanitary District water 
1481 was turned in. That is the only occasion IT remember 
that I had the outfit on that piece of land. I husked corn 
1482 on the Waugh land, but I don’t remember the years. 
I had noticed the difference in the condition of the river. 
The water is considerably higher. There used to be no 
1483 water around a lot of trees we used to fish around. 
Afterwards there was. Other places covered with water. 


291 


1484 I should think the difference in the water was about 
three and a half to four feet. I fished from April to Sep- 

1485-6 tember. I recail no differences other than I have 
stated except there is more water. 


1487 I don’t know how much timber there was, in acres. The 
timber was soft maples and willows, grew along the bank 
of the Illinois River. 


1488 Cross-Examination by Mr. Chiperfield. 


To a certain extent have been employed by the plain- 
tiff. Before 1900 fished quite a number of years in the 
1489 Illinois River. I have gone: back 30 years in my testi- 
mony. I have fished right next to the Illinois River 
1490 bridge and below and above. Fished down at the ‘‘Three 
I’’ bridge down at Marquette. Have fished in DePue 
Lake eight or nine miles down. I covered that in my tes- 
timony. Also down at Sister Islands, which are seven 
miles below Hennepin and about 28 miles below La Salle; 
1491 also at Senachwine Lake, three miles below Sister Isl- 
ands and above the Henry Dam. Senachwine Lake con- 
1492 nects with the river. Its water comes from the Illinois 
River. There is a difference in the level at Senachwine 
1493 Lake and La Salle, but I don’t know how much. I have 
covered all these matters in my testimony in answer to 
Mr. O’Conor’s questions. 


At all these places before 1900 there was both high and 
1494 low water. In the spring the water would get high. I 
do not remember the high water of 1888. I cannot refer 
1495 to the year 1892. I cannot give you any specific year. 
Sometimes the water would be higher and sometimes it 
would be lower. 
1496 J don’t remember the water coming up to Water street 
and flooding the basements of the business places that 
were located there. I have heard them talking about it. 


292 


Water street is about ten feet higher than it was years 
ago, than it was 29 years ago last May. I don’t know 

1497 that Water street has not been raised by a foot and a 
half. It has been raised, but I don’t know how much. 
I don’t say. 


1498 Along the bank buildings have been torn down. I only 
know what I have heard about buildings being flooded. I 

1499 could not say whether buildings have been raised or not. 
T could not tell you. They are practically all stone build- 
ines and brick buildings with basements. I don’t know 
whether they are now in the same place or not. 


I don’t know whether the high water has been as high | 
since 1900 as it was before, cannot give you the years. I 
don’t know of any year that the stage of the water in the 
river is any higher now than it was before. 


1500 Before 1900, if we got a big flood the river would go 
up. I don’t know how much the greatest rise was in the 
Illinois River. J don’t know whether it rose 15 feet or 
23 feet. It rose as much as 12 feet; cannot say any more. 

1501 I don’t know whether the river has had a rise of as 
much as 22 feet. I don’t know what the maximum rise 

1502 was in 1892 or 1883 or 1890, or between the years 1890 
and the year 1900, or between 1900 andthe present time. 
I don’t know whether the Illinois River since 1900 has 
heen as high as it was before. When it is high it extends 
from bluff to bluff, three-quarters of a mile wide, possi- 
bly a mile. Have seen a vast river flowing through the 
valley. 


1504 Have known the pumping station about 20 years. I 
haven’t got any idea before 1900 how high in feet the 
pumping station would be above the level of the river 
when it stood at its lowest point; I don’t know whether 
it was 30, 40, 50, 100 or 500 feet. I am satisfied it was 

1505 not 500 feet. I don’t know whether it was 20 or 25 feet. 
Have no idea, I have seen the water pretty close to the 


293 


road and have seen it low. I don’t know how far it would 

be below the edge of the pumping station; the pumping 

station is about nine feet from the river. I never watched 
1506 the high water stage, how high it got. 


1507 Reeess until 1:15 Pp. m. 
1508 November 18, 1912, 1:15 p. m. 


Court met pursuant to recess. 


Tomas Hatstrap, a. witness for the plaintiff, recalled 
for further examination, testifies as follows: 


Direct Examination Continued by Mr. O’Conor. 


Did not do any hunting on this land last year. I did 

1509 not see them husking on the land. They were husking 

the corn and taking it out with boats. It was in the fall 

1510 of the year, about husking time. Did not see more than 
one boat. ‘The land was covered with water. 


Cross-Exanunation by Mr, Chiperfield. 


I guess they have husked corn a great many times in 
boats on that land. I stated this morning that I had 
marked different stages that | had observed for the pur- 
pose of locating low water on the Illinois River; the 

1511 marks were all along there where there was a tree or 
anything like that, clear from Peru to Senachwine Lake, 
a little over 30 miles. Before 1900, the trees there every 
year would sometimes be in the water and sometimes out 
of the water, but since 1900 they have been in the water. 
1512 There are quite a few of them located where I could 
show you. One right at the mouth of Huse and Loomis 
Slough. J don’t know whether it was a soft maple or a 
willow. It is only a stump now, it was atree. There are 
quite a few trees near it. You could not distinguish the 


294 


1513 tree unless you knew where the tree was. There is no 
road there. 


1514 The slough is located about a mile west of Peru and 
connects with the river, a mile or a mile and a quarter 

1515 from the bridge. I have told you where that slough was, 
about a mile west of Peru and it connects with the river. 

1516 The tree stands right in the water now probably three 
or four hundred feet from the river bank. The tree is 

1517 located on the edge of the slough. I would have to take 
you out to show it to you, it is impossible for me to locate 

1518 it. It was located along that slough just above the 
mouth. It is not a very large tree. The standing water 

1519 killed it. It did not stand in the water all the time, only 
at certain times. At times of high water the water would 
probably be 15 to 20 feet deep. It was a tree 25 to 30 
feet high. At high water there would be some of it 
sticking out. 


1520 I know the condition of the river at the present time. 
IT seen it this morning. With reference to the bank where 
the river curves, the river is about bank full. My judg- 
ment is the river has risen in the past 30 days three feet 

1521 or more. Before the river commenced to rise the tree 
would be standing in water about 34 or 4 feet. Before 
1900 the river at a low stage would be 34 to 4 feet below 
the bank. No water around the tree. There would be 
water around the tree when the river is from 34 to 4 feet 

1523 below the top of the bank. At certain times of the year 
before 1900, there would be water around the tree. Be- 

1524 fore 1900, when the river was at its low stage, the water 
would be eight feet below the top of the bank. Before 

1525 1900 the base of the tree would be about a foot and a 
half out of the water, maybe two feet. 


When the river started to rise this last time it would 
be more than three feet below the top of the bank. Be- 
1526 fore the river commenced to rise about 30 days ago, I did 


295 


not pay any particular attention to it. I don’t know how 
much water there was around the tree because I was not 
down there. 


1527 Another particular point is a big tree about three feet 
through right across the slough. It is an elm tree. I 
don’t know how much water was around it 30 days ago 
or how much there is to-day. In dry seasons before 1900 
it was out from 34 to 4 feet. I know there is water 
around it as the river is just about medium stage, bank 

1528 full. That stage is considerably more than a low stage. 
IT don’t know how much above low water a medium stage 
in the [hnois River is supposed to be. I did not say a mo- 
ment ago that it was a medium stage. 


I don’t rememebr the low water of 1901 or of 1893, 

1529 or 1896, or when the lowest water was that I ever saw 
before 1900. 

Since 1900 I have not made any mark along the river 

and I don’t know when the lowest water was since that 


time. I don’t always go fishing at low water. I would 
1530 fish in August for bass. 


1531 At times in August and September, before 1900, the 
water was up around that tree and has not been since. 
It has been above them, but not below them. 


1532 I have not observed the current of the river since 1900. 
I don’t know how fast it runs. I don’t know whether it 
is faster now than before. I have not made any close 
observation of the Illinois River either before or since 

1533 1900 outside of fishing. My reason for saying the wa- 
ter is higher now is because I could not stand on the 
ground where I used to fish, I would have to go into the 
water and wade up to my knees. When the water was 
low since 1900, there would be three or four feet of water 

1534 around these trees. That means the river has risen 

1535 about six feet. I say that the river is six feet higher 


296 


now than before 1900 when I said on my direct examina- 
tion it was 34 feet higher, because the river is pretty 
1536 well up at the present time. The trees stood out 3} or 
1537-8 4 feet. I noticed that fact during the years from 1891 to 
1903; 1904, I did not observe the same thing exactly. LI 
1539 last observed the trees were 34 or 4 feet out of the water 
in 1900. 
The first year after the Sanitary District channel was 
opened J noticed the change I speak of. J don’t know 
1540 how quick the rise was after the channel was opened. 
It was shortly afterwards. It might have been the next 
week or so. I was not fishing in January. It might have 
1541 been a week, a month, or two months that I observed 
more water. If there was a rise of 34 to 4 feet of water 
from the condition that prevailed in 1901, the trees have 
stood out of water 31 to 4 feet in low water, they would 
be just into the water as I understand it. 


Did shredding on this land 10 or 12 years ago; don’t 
1542 know which itis. Did not keep any book or memoran- 
dum by which I can tell. I have no accounts in existence 
1543 from which I can tell. I know, because there was no 
corn raised after the Sanitary District was opened. I do 
not know that in 1900 and 1901, full crops of corn were 
raised upon this ground. I know that there has been 
corn raised on the ground, pieces of it, since 1902. Corn 
raised there every year; there might be one year that 
1544 there was not. I am not proposing to fix any date at 
all; I cannot fix the dates. 


Put the engine and shredder there before the ground 

froze up, in November some time. It was probably frozen 

a little. I don’t know how many acres of fodder we 
1545 shredded there, but was there pretty near all winter. I 
1546 don’t know the capacity of the machine. Probably three 
or four acres, maybe five acres we could shred a day. I 
don’t know how many acres of corn there was in there. 


297 


1547 I don’t know when it was we did the shelling. In my 
estimation it was about 10 or 12 vears ago, not 20. It 

1548 was somewhere from 30 years to 10 years. The sheller 
stood on the high land. The closest time I can fix it is 
from 30 to 10 years ago. 


1549 M. J. Cuartey, a witness for the plaintiff, being sworn, 
testifies as follows: 


Direct Examination by Mr. O’Conor. 


‘My name is M. J. Charley, I live in La Salle, am 55 
years of age. J worked land belonging to the plaintiff. 
1550 I first farmed land belonging to the plaintiff in 1887 or 
1888. It was west of the Illinois Central and south and 
east of the Illinois river. The land that lies west of the 
1551 Illinois Central and south and east of the Illinois river 
1552 is the land I farmed in 1887. I farmed 15 to 16 acres. I 
farmed the land in 1898, say 20 acres. I planted corn. 


1553 There were others farming land in that neighborhood. 
All of it was farmed except the wooded land. It was 
planted in May. Cultivated the crops with teams and 
cultivators. Husked the corn. Husked the corn kind of 
late, it was kind of a bad season. All of the land to the 
best of my belief was cropped in 1898. The corn was 
of good quality and it ran about 60 to 65 bushels. After 

1554 1898 did not farm that land. 


1555 Have been acquainted with the Illinois river and the 
Illinois bottoms south of La Salle all of my life and since 
the Sanitary District water was turned in. During the 
last two years I have been over there very nearly every 
day during the planting and cultivating seasons. 

1556 Q. Referring to this piece of property, Mr. Charley, 
that we have been talking about, which lies west of the 
Illinois Central right-of-way and east and south of the 


298 


Illinois river, do you know what the fair, cash market 
value of that land was in the year 1900, before the turn- 
ing in of the Sanitary District water, without stating 
what it was, do you know? A. Why, between $95 and 
$100, along in there. 

Answer stricken. 

(). First, whether or not you know. Answer it yes 
orno? A. Yes, sir. 

(. Now then, will you state what in your opinion was 
the fair cash market value of that land that I just now 
described to you? A. About $95. 

(. In the year 1900? 

Mr. CurprrFietp: Just a minute. I didn’t know his 
question was complete. I want to object on the ground 
that no proper foundation has been laid. 

Mr. O’Conor: My question was not complete. 

Q. (Continuing): In thé year 1900, prior to the 
turning in of the Sanitary District water? 

The Court: Overrule the objection. 

To which ruling of the court, the defendant by its 
counsel, then and there duly excepted. 

A. About $95. 

Q. Do you know what the fair cash market value of 
that land was in the year 1900, after the turning in of the 
Sanitary District water, taking into consideration the 


1558 facts that you now know in relation to the flow of the 


Illinois River? 

Same objection; objection overruled; to which rul- 
ing of the court the defendant, by its counsel, then 
and there duly excepted. 

A. Why about $40 or $45. 

Mr. O’Conor: Q. You will have to say yes or no 
first. 

A. Yes. 

Q@. Will you please state what in your opinion was 


299 


the fair cash market value of that land in the year 1900, 
after the Sanitary District water was turned in, in the 
month of January, taking into consideration the facts 
that you know at this time in relation to the flow of the 
Illinois river? Now, you may make your answer. 


Mr. Cuiperrretp: Object unless it also includes the 
condition of the land. I object on the ground it is incom- 
petent, irrelevant and immaterial and no proper founda- 
tion has been laid and that in asking a witness to take into 
consideration all the things he now knows in reference to 
the river, that it is an indefinite assumption that is only 
known to the witness and not disclosed to the counsel 
for either plaintiff or defendant, and now known to the 
jury, and does not include the highest and best use that 
ean be made of the land. 

1559 Objection overruled; to which ruling of the court, 
the defendant by its counsel, then and there duly 
excepted. 

A. What was the question, what the value of the land 
was that year; $95. 

Mr. O’Conor: Q. No, that was the first question. 
You will have to hear that question read, I guess. 

(Question read.) 

A. Why, about $54. 

Prior to the Sanitary District water being turned into 
the valley I was acquainted in a general way with the 
flow of the Illinois river and have been acquainted with 
its flow since. The difference I have noticed is that when 

1560 I go down there in the spring time to put the crop in that 

you could go right along with it and put it in previous to 
the drainage water being turned in, and I know since 
then that the level of the river—it is up and down so 
that you don’t know where you might stand. Sometimes 
go down there in the regular part of the season to put 
your crop in and you cannot get it in and you have got to 


300 


wait and put your crop in in sections. We had to run 
along say ten or fifteen rods and plow and harrow it and 
plant it, and then ten or twelve days go on and plow 

1561 about the same thing again and connect up the planting. 
About 10 or 12 days afterward we would do the same 
thing and we got the land pretty well covered. 

Motion to strike answer as not being responsive to 
the question; motion overruled; to which ruling 
of the court, the defendant by its counsel, then 
and there duly excepted. 

1562 I was going to say I was very much interested in the 
putting in of crops down there. 

Motion to strike by the defendant; motion over- 
ruled; to which ruling of the court the defendant, 
by its counsel, then and there duly excepted. 

A. And paid strict attention to it. 

Motion to strike renewed; motion overruled; to 
which ruling of the court, the defendant by its 
counsel, then and there duly excepted. 

(). Are you at the present time farming any lands 
on the bottoms owned by the La Salle County Carbon 
Coal Company? A. Yes, sir. 


Mr. CurpPerFIELD: Object to it as calling for the con- 
clusion of this witness as to the ownership of this land. 
Objection overruled; to which ruling of the court, 
the defendant by its counsel, then and there duly 
excepted. 
Mr. Cutperrietp: More to strike the answer of this 
1563 witness as to the ownership of the land on the ground 
no foundation has been laid and that the record does 
not disclose he has any knowledge upon this proposition 
and the title cannot be established by parole. 
Motion overruled; to which ruling of the court, the 
defendant by its counsel, then and there duly ex- 
cepted. 


301 


Am renting land this year from the plaintiff. It is lo- 
cated east of the Llinois Central, and the ‘‘Q’’ Road cuts 
it up some, it goes right through it there. It is west of 
the Big Vermillion. I don’t know what section it is 

1564 located in. My knowledge is gained simply from look: 
ing at the plat but it appears here on the plat as located 
in the southwest quarter of section 23. A part of it 

1565 overlaps the section and runs to section 24. 


1566 I started to farm that land ten years ago, in 1911. I 
never farmed it prior to last year or subsequent to 1900. 
Last year we started to plant about the 11th of May. We 

1567 started out and plowed the high ground so far as we 
could go and then planted it. We had to let our six 
teams lie idle for about ten days, could not do anything 
after we got the high ground in. Then after the expir- 
ation of ten days we went on and plowed another piece 
and connected it up. And we done the same thing again 
until we got done pretty well. 


1568 In that piece there are about 69 or 79 acres, I am not 
positive which it is; one or the other. The crop matured. 
The corn grade number 4. This year we haven’t got 
within 25 acres of what we had in crop a year ago. This 
year we got on the ground early. We did not get to 
plant all of the corn until about the 18th or 19th of May. 

1569 We pursued the same methods of cropping this year 
that we did last. 


Mr. O’Conor: Q. Now, referring to this land located 
east of the Illinois Central, section 23, some of it being 
south of the right-of-way of the C. B. & Q. and some of 
it north and a small piece of section 24 lying between the 

1570 right-of-way of the C. B. & Q. and the Vermillion river, 
state whether or not in the year 1900, in the month of 
January, you were acquainted with the fair cash market 
value of that land prior to the turning in of the district 
water of Chicago? 


302 


A. $95 an acre. 

Q. State whether or not, Mr. Charley, you know what 
the fair cash market value of that same land was in the 
year 1900, January, subsequent to the turning in of the 
Sanitary water, taking into consideration the facts that 
you now know in relation to the location of the Illinois 
River. | 

Mr. Curperrietp: Objected to as being incompetent, 
irrelevant and immaterial, and for the further reason 
that the answer called for is to be based upon facts which 
are known only to the witness and are not disclosed to 
the court, counsel or jury. It is calling for the conclusion 
of the witness, and no proper foundation has been laid. 

Objection overruled; to which ruling of the court, 
1571 the defendant by its counsel, then and there duly 
| excepted. 

A. About $45. 


I am the owner of bottom land and have a suit at the 
present time pending against the defendant. 


Cross-Examination by Mr. Chiperfield. 


From the fact I have a suit pending against the de- 
fendant I feel some interest in the outcome of this suit. 
I am desirous of seeing the plaintiff succeed upon fair 
means; | am desirous of seeing the plaintiff succeed in 
this suit. 


1572 My business at the present time is farming and con- 
tracting. 

I cannot state positively how much ground there is in 
the piece that lies to the east of the Illinois Central Rail- 
road. I cannot tell you. To the best of my recollection 

1573 it is about 79 acres. Went across the main ‘‘Q”’ track 
from one side to the other. Had nothing to do with the 
small piece over in 24, that has not been included in my 


303 


answers. In the year 1911, we had this all put in corn. 
1574 I got in the neighborhood, off the entire piece, I think 
about 9,000: bushels. I had 89 acres on the north; the 
piece adjoins that. It was about the same kind of land. 
And from the 150 acres I got 9,000 bushels of corn. That 
would average about 60 bushels to the acre but some 
places it would go more than that and graded number 4. 
Number 4 is regarded as good corn. There is number 
1575 3 and a little number 2 but considerable number 3. Num- 
ber 2 does not apply to new corn, it applies to old corn. 
On new corn there are simply two grades that are ap- 
plicable to this section of the country and that is number 
three and number four. The corn about Peru on the high 
and low land taken to market grades three or four. It is 
1576 divided between the two grades. 


The difference in value in price of corn between three 
and four last year was a cent or a cent and a quarter a 
bushel. On the whole 9,000 bushels it would be something 
like $90. I got 634 cents for my corn. 

In 1912 we planted again. This year haven’t got all 
my corn in, been picking a little over a week. I haven’t 
got any of this big field in yet, none of the 79 acres, which 
was put in later than the other, we did not feel like pick- 

1577 ing it. The last of the field was planted the 18th of 
June. 


The 26 acres that we did not get in this year is north 
of the waste pile. The waste pile is immediately north 
of the switch, on the south line. It is quite a long piece 
there to the west line and is closer to the east line. I don’t 

1579 know how many acres there are in the dump. I never 
gave it any thought, perhaps 24 or 3. There is an oc- 
easional big’ rock runs down there when they dump the 
ears off. 


1580 It was wet around the dump this year when we went 


304 


to put in our crop, the water came from the river, the 
overflow from the Vermillion river or the Illinois. There 
is a draw in there from the Vermillion. 


1581 The land was planted in 1910 by a man named Shep- 
pard, also planted each year between 1900 and 1909. 
Aside from it being inconvenient for us to plant it all 
at one time, in 1911, we did get the entire land in. 


When I attempted to fix the values for this land I have 

1582 taken into consideration the land as an agricultural 

proportion. I took into consideration its worth for rental, 

its worth for raising crops, its rental value and the use 

that can be made of it, and the conditions have been about 

the same from 1900 down to the present time; very little 

variation, substantially the same. Since then if there was 

1583 a heavy rain and the waters are raised and cover the 

land, just as soon as it stops raining, in an hour after- 

wards, it commences to recede and goes down very fast 

and don’t delay at all only a matter of three or four days. 
In.1911, it did not delay us after we got started. 


The rental value for the land for the year 1911, was 
two-fifths; this year it is the same. Other years I don’t 
know. 


In the year 1911, there was 4,500 bushels of corn raised 
on this land. The share of the La Salle County Carbon 
Coal Company would be 1,800 bushels or something like 

1584 that and the selling price was 63} cents I think. I never 
figured it up, I don’t know whether the rental value 
would be $14 an acre. 


1585 I cannot tell how many bushels of corn will be raised 
on the land this year because it is moist and not dry; put 
in later. I don’t know whether there was a great deal 
more of corn that had to be re-planted this year. It is 
true that if corn was not planted very early this year, 


305 


there was a time when by reason of heavy rains it could 
not be planted until quite late in the vicinity of this land. 

It is my belief the corn this year will not grade. The 

1586 ears are not well formed; the cob is pretty shaky, 
I mean the cob is not firm. Some of the corn is well 
dented and hard now. 

Q. Mr. Charley, will you produce, if we pay you for 
the corn, a bushel of that corn picked at random, in this 
court room? Starting in and picking at random as a man 
would pick any bushel of corn, to be admitted as evidence 
in this case, if we will pay you for the corn? A. I don’t 
know whether I want to go and do that work or not. 

Q. Will you let us do it for the inspection of the jury? 
A. Why yes, provided you do and do it under the super- 
vision of myself or somebody in charge. 

(. Will you go tomorrow morning under those con- 
ditions and let us pick a bushel of corn to be used as 
evidence in this case? A. No, sir, I won’t. 

(. Under your own supervision? A. No, sir, I won’t 
go tomorrow morning because I ought to be in bed this 
afternoon? 

@. Are you sick? A. Yes, sir. 

Q. Will you send a man tomorrow morning? A. No 

- 1587 sir, I would want to do that without being on the ground 
myself. | 

@. Will you fix the time when you will go? A. Some 
time when I get in better shape, better condition, I will. 

Q. Will you do it Tuesday? <A. It depends upon 
what shape I am in. If I am in shape to go out I will. 

I farmed land in this vicinity in 1887 or 1898, I am not 
positive. 

1588 In the piece west of the Illinois Central right-of-way, 
there are 70 acres more or less. In 1887 I farmed 15 
1589 acres. Last year it was all farmed. During all these 


306 


years there was farming operations going on there. I 
have not farmed any of the west piece since 1900. 


1590 I took into consideration when I was asked about the 
rental value, the value of the crop and the adaptability 
and use and all those things in fixing the value of the land 
before 1900. I don’t remember what rent I paid in 1898. 
It was corn, but I don’t remember the proportion. I can- 
not remember. 


In a general way I am familiar with the coal business. 
I know the location of the shafts around La Salle. I 
know the quality of the coal, it is a high grade of steam 

1581 coal. From my experience it is high grade. 

(). Now when you gave your answers of $45 an acre 
since 1900, as I understand you did not take into con- 
sideration the fact that this land is underlaid with coal, 
but testified simply as an agricultural proposition? A. 
Yes, sir. 

Q. Now, if itis true—if that land is all underlaid with 
coal, isn’t that a fact, Mr. Charley supposed to be? A. 
Why it is supposed to: be. 

Q). If it is true that this land is underlaid with a high 
grade of merchantable—with steam coal that you have 
spoken about, of course that would have added consider- 
able to your answer as to the value as a coal mining prop- 
osition, would it? A. Yes, sir. 


@. Wouldn’t it be your judgment, Mr. Charley, that if 
this land is underlaid with the grade of coal of which I 
speak, that this land of which I speak would have been 
worth $100 an acre as a coal mining proposition? A. 
1592 Well, I would not say for sure, I do not know what 
amount of coal there is to an acre so I cannot answer. 
Q. If there be from 3,500 to 5,000: tons per acre? A. 
Well, if there be, I presume it would be valuable, yes. 
Q. Wouldn’t it in your judgment be worth $100 an 


307 


acre at that time as a coal mining proposition? A. Per- 
haps it would. 


I don’t think I had anything to do with that piece in 
section 24. I think it is the piece that lies south of that, 
still [am not positive. This piece here lying immediately 

1593 north of the switch going in there, and south of that 
where I worked I didn’t work it. It is a piece of six or 
1594 seven acres maybe. 


Cuartes Kenckie, a witness for the plaintiff, being 
sworn, testifies as follows: 


Direct Examination by Mr. Butters. 


1595 My name is Charles Kenckie. I live at Oglesby, lived 
there ten or eleven years. I lived within a mile of sec- 

1596 tion 21, formerly farmed by Waugh. I lived there when 
a boy; am 40 years old now. It was about 20 years ago 
when I lived at that place. I remember Waugh was liv- 
ing on that land. 


Since then I have seen it about every year. Between 

1892 and 1900, they tried to raise corn on it. Waugh and 

1597 Braun were farming it. Corn was raised all over it ex- 
eepting the timber. The timber was on the south side. 
The corn was good corn. I could not tell exactly what 
years I was on the land but I used to work for Waugh 

1599 and Braun. I worked six years off and on about 22 or 3 
years ago. I worked in the winter and fall cutting props 
and choring. 

I know when they had their stock turned in there. 
When I worked there no water on the land to amount to 
anything except in the low part. I was there two or three 

1600 different seasons off and on. I have seen as high as 
1601 25 or 30 head of cattle and horses turned in there, 


308 


They started to plant corn about the first of May, 
some of them. I can’t tell what years. The corn ran 
1602 right up to the river bank. I was there sometimes husk- 
ing. I heard about the Sanitary District water being 
turned in. The year I husked the corn was matured. 
I worked on no bottom land except the Waugh land. I 
1603 cannot say whether I worked on this land subsequent 
to 1900. Worked there two years ago. I had a little 
piece rented there for myself. It was near the slough, 
about 25 acres and I rented it from the plaintiff. It ran 
1604 over the slough and ran east from there, quite a ways 
from the river, but I don’t know just how far. It was 
medium ground. I farmed it three years ago and farmed 
the same two years ago and some three years ago. Not 
1605 farming any this year. 


The first of the two years I have mentioned I got start- 
ed to planting corn along the Jatter part of June. I could 
not do nothing with it hardly. I planted 25 acres as near 
as I ean judge. I got soft corn. The next year I did not 

1606 plant any until along the first of July. I did not plant 
only a couple of acres. I did not get anything off of that 
only a few stalks. I haven’t farmed any of it since. The 
other land west of the river, north of the river and east 

1607 of the slough was about the same. 


Cross-Examination by Mr. Chiperfield. 


Twenty-three years ago I worked on and off for Sam 
Waugh. I worked a couple of times during the summer, 
just a few days, just helping out is all. 

In the winter 30 or 35 head of stock there all the time, 
running around eating the corn stalks. Sometimes in the 

1608 spring of the year the cattle would have to be taken out 
on account of high water. 


I remember the bank of the river. Those days the 


309 


river would be down three or four feet below the bank. 
I have seen it as low as 10 or 20 feet in places where 
the banks are high. It was not a high bank right at the 

1609 curve. At the curve J have seen it three or four feet 
below the bank. 


Three or four years ago I had 25 acres of land and 
only got five loads off of it. I picked them off the south 
side. The rows were 80 or 90 rods long and about eight 
rows to the load. I haven’t any idea how many such 

1610 rows you have to have to make 25 acres. I threw the 
corn out to the hogs and they wouldn’t eat it. The corn 
molded on the stalks. It rained on it and the stalks did 

1611 not dry out. The corn was three or four feet high. The 
big stalks were five feet high. 


Mr. MePhedron came to see me. I talked with him to- 
day. I haven’t talked with him but saw him Friday. 


1612 There was more than 50 bushels on the 25 acres but 
could not tell exactly how much there was. 


J am running a threshing machine now and doing one 
1613 thing and another. Some seven or eight years ago I quit 
farming and went into the threshing business. 


1614 CuHaruns Dootry, a witness for the Lee being sworn, 
testified as follows: 


Direct Examination by Mr. O’Conor. 


My name is Charles Dooley, I live in Peru Township, 
45 years of age. I farmed land belonging to the La Salle 
1615 County Carbon Coal Company. I don’t know what sec- 

| tion it was in. I was on the north side of the river. 
1616 I see the figure 21 on the map. It would be in the 
1617 northeast quarter of that section. I farmed this land 
from the year 1890 to 1900, about 20 acres. I continued 

to farm it down to 1904. The corn we got from 1890 


310 


to 1900 was solid. Before 1890 we used to get the crop 
in about the 15th of May. 


1618 The fair cash market value of the land I farmed in 
Section 21, in 1900, in the month of January before the 
Sanitary District water was turned in, was $65. 


1902 was a flood year. 1903 had about 12 acres in crop. 

1619 The corn was soft, sold it for 25 cents a bushel. In 1903, 

planted up to the 27th of June. In 1904, I worked the 

same place and got 14 acres in. Could not put any more 

in because it was too wet. The corn I planted sold for 

$5 an acre in the ground, for fodder, half of it, and 

the other half I hauled home and picked it over. In 

1904 had soft corn. I did not attempt to farm any more 
after that time. 


1620 Have known the Illinois River for a number of years. 
I know generally when the Sanitary District water was 
turned into the valley. It raised the water, it floods the 
land so you cannot work it. We have not been able to 
get on it at all to work it at all in the spring of the 

1621 year. Before the water was turned in we worked two 
teams down there. We husked corn in 1903. We waited 
until it froze up a little, did not start to husk until No- 
vember. My brother farmed the land in 1905 and 1906. 

1622 In 1905 it was soft same as the previous year. In 1905 
had 12 acres in and in 1906 did not get over seven or 
eight acres. 


Q. Now, I will ask you whether or not, Mr. Dooley, 
you have an opinion as to the fair cash market value 
of that land in the year 1900, in the month of January, 
subsequent to the turning in of the District water, tak- 
ing into consideration the facts that you now know in 
relation to the flow of the Illinois River. 


Mr. Cuiperrretp: Objected to as being incompetent, 
irrelevant and immaterial and no proper foundation laid 


dll 


and including in the elements of the question facts which 
are known only to the witness and which are not dis- 
closed to the court, counsel or jury, and which do not 
appear in this record.’’ 


1623 Objection overruled; to which ruling of the court, 
the defendant by its counsel, then and there duly 
excepted. 


1624 A. Why I would say $10. 
Q. Is it practicable to farm it at all at this time? A. 
I haven’t been down there. 


Q. I am talking of it in the years so far as you 
know? A. No. 


1625 Cross-Examination by Mr. Chiperfield. 


It is too wet, you cannot get on it. During the four 
or five years that I knew it the water would get off in 
June in time to plant part of it. The rest of it would 
2o off in a week or two. It would be all off by the 
first of July and then it could be plowed, only it was 
too late to raise corn. Sometimes if it wasn’t for the 
fact it was too late, the land could have been worked 

1626 after the first of July. There could be sorghum or 
something put in; millet could be raised there; sugar cane 
could be raised there. Turnips and cow peas could be 
raised there. Any of the crops that could be raised in 
from six to twelve weeks, could be raised there some 
years. 


1627 The corn that I saw there was soft; if it was cut it 
probably could be used for silo purposes. The different 
vegetable crops, such as tomatoes, cabbages and garden 
erops, could be raised on this land if you got it in time. 
You could raise anything. I don’t know anything about 
such crops whatever. I haven’t taken that into consid- 
eration. If the land would raise these different forage 
crops and vegetable crops it still would not have any 


312 


value for me. I would not want to raise them. It would 
have some value if a man wanted it for that. I cannot 
understand that if the land was suitable for these crops. 
it would not have a value or that it would have a con- 

1628 siderable value. If a man could raise such crops there 
would be an additional value to the land but it would not 
to me. I don’t want to raise them at all. I want to 
raise the longest crop but it could be used for other 
things. Because I could not raise corn it would not have 
any value for me although it would successfully raise all 
those other crops of which I spoke, still the land would 
be worthless and that is the basis upon which I made 
my answer in this case. 


1629 I know this land had no houses or improvements of 
any kind on it, never had and that nothing ever could 
be on it. Fences would be washed away, also any im- 
provements that would be put on it. In addition to that 
it was down south of this slough and the slough is con- 
nected with the Illinois River and as the river would 
rise this slough would rise and back out over the field. 


I was familiar with the banks of the Illinois River 

along that piece to the west when I was down there. In 

1630 low water the river was three or four feet below the bank 

before the Sanitary District was opened. I have not 

seen the river lately, not in two or three years. I think 

it was last August I saw it the last time. I don’t know 
how high the river is at the present time. 


1631 I was farming the land in 1900. I got a good crop, 
good solid crop, in 1900. The water did not get my crop 
in 1900, I had a crop in 1900 and I had a good crop in 1901. 
It was a dry year. In 1900, the water stood three or four 
feet below the bank—TI think two or three feet. In 1901, it 
1632 was lower than that. In 1901 it stood four feet below the 
bank. I saw the river lower than that in 1888 and along 
there. I have seen the river three or four feet lower 


313 


than in 1901 as I recollect. I do not know that the water 
of 1901 was the lowest recorded water in the river. 


In 1902, I got no crop, it was a flood year. In 1902, 

1633 I planted it and got a good crop. In 1904, I got 12 

acres; I only husked a part of it and sold the other part 

for $5 an acre. ‘The corn that I kept ran about 60 bushels 

1634 to the acre, but it was soft. I picked it over and fed 

it to the cattle and hogs. The other land ran about the 

same; it was planted later and it was still. softer than 
what I got. 


My brother farmed it in 1905 and 1906. He had about 
the same kind of luck I did; a little over half of it was 
utilized in those years and the corn was softer than 

1635 usual. I don’t know what the market price was that 
year. I think it was around half a dollar as I remember 
it. It was solid corn. In 1903 it was as high as I re- 
member it. 


I stated that in 1900, taking into consideration certain 
things, that in my mind this land would be worth $65 
an acre. I don’t know of any land situated similarly to 
that which sold for anything like that before 1900. I 
don’t know of any sales being made. I based my state- 
ment as to the market value of the land before 1900, on 

1636 the crops we used to raise. I do not fix it on any actual 
transactions. I take into consideration the rental value 
and crops that were raised and the use for which it was 
adapted. 


I paid from 1890 to 1900, $3 per acre cash. In 1900, 
$3; 1901, $3; 1902 paid no rent; 1903 and 1904, $1. 


1637 When I answered as to the value of the land since 
1900, I was considering it only from the standpoint of 
the corn raiser and excluded every other consideration 
that would enter into the value of the land. If it has a 
value for other things I have not considered them. 


314 


Corn takes the longest to mature of any crop that I 
know of. 


I did not take into consideration since 1900 the value 
of this land for coal. I know the La Salle County Car- 
bon Coal Company who claims to own this land is a coal 

1638 mining corporation and that this land has been gotten 
together for the purpose of coal mining operations. 


Q. Now, knowing that, Mr. Dooley, when you are 
asked what you think is the fair cash market value of 
this land, don’t you think you ought to take that into 
consideration? A. Well, I wasn’t considering coal at all. 


Q. But in fixing the fair cash market value of land, 
as I understand the rule, it is the duty of the witness 
to take into consideration the best and highest use for 
which the land is fitted, and not only that, but every use 
for which it is fitted. Now, if that be true and you are 
called upon to take those things into consideration and 
you do take into consideration the coal, you would say, 

1639 wouldn’t you, that this land in 1900, had a very consid- 
erable value for coal land, you would have to say that, 
wouldn’t you, Mr. Dooley? A. Well, you know—they 
could get the coal no matter how much water was there. 


Q. That is true, but it is also a question of the entire 
value of the land? A. Yes. 


(). And when you take into consideration every use 
or the uses for which the land is fitted and you know there 
is coal, with the understanding that there is a coal field 
of that kind, do you think you can fairly exclude that 
coal? A. I would, yes. 

@. You would not consider it? A. No. The water 
would not effect the coal. 

But in fixing the value of the fee simple estate the coal 
goes with it under such circumstances. In fixing the 

1640 value of the land you would have to add to the value 


d15 


of the land as fixed for agricultural purposes whatever 
the coal is worth. You have got to add a considerable 
sum for the coal. 


Q. Don’t you think, Mr. Dooley, under those circum- 
stances, if it be true, that the land would be worth $60 
or $65 an acre for the coal that is contained in it? A. 
I don’t know anything about that. 


Q. You are not able to fix a value on the coal? A. 
No. 
Q. But in your figures that you have submitted you 


have attempted to fix no value whatever upon this coal? 
A. No, I have not. 
Since 1901, the water has been higher. In 1900, and 
1641 1901, I saw not much difference. In 1902, it was awful 
high. I don’t know how much water stood upon the land, 
it stretched out from bluff to bluff. I don’t know how 
much water there was. Would have had trouble to get 
1642 down there in a boat, it was so wet. 
In 1904, the water got about three feet I think below the 
bank. 
1643 Before 1900, we did not pay the $3 a year rent if we 
did not get a crop. Outside of farming before 1900, I 
used to team. My brother’s occupation was teaming. 


I market the corn I did not feed. 


1644 Samuet Prercs, a witness for the plaintiff, being sworn, 
testified as follows: 


Direct Examination by Mr. O’Conor. 


My name is Samuel Pierce, by occupation miner; I 
work in Number 1 mine for the plaintiff. I have lived 
around La Salle 40 years. 


I have seen the map marked Exhibit 13, before. IT 


316 


1645 worked on the land that lies west of the Illinois Cen- 
tral and south and east of the Illinois River about 20 
years ago. I could not state what year. I was working 
for Bert Pain. Pain lived on the top of the hill facing 
the land, half or three-quarters of a mile away. He did 
not farm all of the land, but farmed what he could. There 

1646 was no one else in there farming any. There is quite 
a lot of it in there. There is a slough and willows and 
so on. The willows are next to the Illinois Central and on 
the south road or near the south road. 


I think I did farm work in there four years; I think 
it would be since 1890. I plowed and cultivated corn. 
_ 1647 Got in there to do plowing in May. I worked three 
teams. Pain and his father worked with me. 


I did not husk any of the corn during these years but 
saw some of it. Pain hauled it to his place. They raised 
good corn, a good crop, fully matured. I have farmed 
none of the land since 1900. 


1648 Cross-Examination by Mr. Chiperfield. 


I am working for the plaintiff as a track layer. Oglesby 
is six miles from Perry. One of the shafts of the plain- 
tiff is located there. 


1650 I don’t know what rent Pain paid. I last worked there 
14 or 16 years ago. Worked on the farm in slack times. 
There were no houses, fences or buildings on the land, 
nothing but the naked land. 


1651 The water of the [Illinois River would overflow it at 
times. I could not say how much, have no impression. 


1652 I do not know the number of acres that were in crop. 
I would say, though, as a guess, 30 to 40 acres. The 
land lay in a three-cornered piece; one side was the 
river, the other side was the Illinois Central and the river 
and the Illinois Central came together like the apex of a 


>~ 


317 


triangle. The base of the triangle would be the high 
road. 


1653 Along south side of the piece there was quite a con- 
siderable piece of timber and swamp. On the south there 

1654 was a number of acres of timber, willows and other trees 
which had not been cleared up, and on the river there 
was a considerable fringe of timber. Then along the Ilh- 
nois Central there was a considerable fringe. 

1655 I told Mr. O’Conor there was a slough on the south 
side of it between the bottom lands and the hill. The 
slough was north of the road. It was right close to 
the road, some of it, and it covered several acres of land. 
Some of it was deep. At times it was connected with 

1656 the river, in times of high water and when the water 
would fall it would leave a slough standing on the land; 
the outlet would be cut off. 

No one lived on the land. No live stock was ever kept 
there except for a season, just for a while after the 
corn would be taken. When the water rose it would be 
necessary to take the live stock off to the hills. 


1657 Epywarp SHANNON, a witness for the plaintiff, being 
sworn, testified as follows: 


Direct Examination by Mr. O’Conor. 
Witness excused. 


Court adjourned to Tuesday, November 19, 1912, at 
9 o’clock a. M. 


1658 November 19, 1912, 9 a. m. 
Court met pursuant to adjournment. 


The Court: You may call the jury. 


Mr. CurpererrieLp: Before you call the jury I have a 


318 


little motion I want to make in regard to some evi- 
dence. 

I move to strike from the consideration of the jury 
in this case and to exclude therefrom upon the question 
of area, injury and damages, that part of the northwest 
quarter of Section 23 which lies north of the Illinois River 
and which is designated on the plat by the figures 15.23 
acres; also that portion of the east half of the south- 
west quarter of Section 23, which hes east of the I]li- 
nois Central Railroad; also that portion of the south 
half of the southeast quarter of Section 23, which lies 
south of 41 acres off the north end of the south half of 
the southeast quarter of Section 23, all in Township 
33 North, Range 1 East of the Third Principal Meridian. 

Now, in doing so, I based my motion upon the fact that 
none of this property is described in the plaintiff’s dec- 
laration and as this is a matter which the court will have 
to determine, will you lay your plat there so that the 
court can follow me in my description as I have the exact 
description. 

The Court: If what you say is true, the court hasn’t 
anything to decide. The court will not decide that if it 
is not in the declaration. 

1659 Mr. O’Conor: We are coming to that, your Honor. 

The Court: Then as to the balance of the deseription 
if that is true there won’t need to be any discussion 
about it. 


Mr. Curperrtetp: I thought the only chance for any 
discussion might be as to what was embraced in the dec- 
laration. We have heen over that very carefully and 
we are firmly convinced that none of it is included in 
the plaintiff’s declaration and on that contention, here 
of course, as vou suggest, if that is so there is nothing 
to argue. 

The Court: If it is not in the declaration. 


319 


Mr. CurprrFreLtp: I am not objecting to the plat now, 
it shows the relative situations of the property, but it 
is to these pieces. 

The Court: lLet’s see what they say, if they say that 
is not included in the declaration— 

Mr. O’Conor: This part is not in, that was put on 
this plat in error. 

Mr. Cureerrrerp: All right. 

The Courr: What is that, 19— 

Mr. O’Conor: 19.23 acres which lies north and west 
of the Illinois River. 

The Court: That is excluded then by agreement. 

Mr. O’Conor: Northwest quarter, Section 23. 

The Courr: That goes out then by agreement. What 
about the balance of it? Or you wanted until after din- 
ner to look that over? 

1660 Mr. O’Conor: No, I have checked this all up. 

The Court: Very well, we will dispose of it now. 

Mr. O’Conor: My recollection at this time is, although 
I would not want to consent to 1t going out right now— 

The Court: Well then you better take until afternoon 
to look it up. 

Mr. O’Conor: That acre and a tenth— 

The Court: What is that? 

Mr. O’Conor: This acre and a tenth located in the 
southwest quarter in Section 23, lying east of the right of 
way of the Illinois Central, I don’t think is described. 

Mr. Cureerrietp: I don’t think, Mr. O’Connor, if you 
will permit, that anything around east of the Illinois Cen- 
tral is included in the declaration. I have looked it over 
with a great deal of care. I can be mistaken about these 
things very easily, but that is our deduction. 

Mr. O’Conor: Now, I am inclined to think that that 
is right on that acre. Now, this piece here lying north— 

The Court: Well, then, if it is you better let it go out. 


320 


Mr. Curperrietp: I will suggest this, if Mr. O’Connor 
finds upon investigation that is in that 1t may be re- 
submitted. 

The Court: It goes out then by agreement, that part 
does. What about the remaining part? 

Mr. O’Conor: That 44-acre piece I think is described 
in the declaration. 

Mr. Curperrietp: Yes, described in the declaration, but 

1661 let me suggest, and I don’t want to interrupt your state- 
ment in any way, but this south section line comes here 
(indicating) there is your division of that section. Now, 
the 44 acres would come about where I have suggested 
and I have taken the liberty in sketching the plat to mark 
it there, which I had no idea you would object to. 


Now, this part east of the switch, this part here north 
of the switch on each side of a line drawn across here, 
is not included in your deseription. Your northeast, your 
northwest quarters are within this 43 acres across here, 
and everything south of that running down to the switch 
is not included in your description. 

Mr. O’Conor: We are not claiming for it, your Honor. 

Mr. CuHIpPerFIELD: Well — 

Mr. O’Conor: We are claiming for the northeast quar- 
ter and the northwest quarter of this quarter section 
and we are claiming for the north 44 acres of the south 
half, that north 44 acres of the south half would be the 
41 acres in here (indicating), 

Mr. CuiperFieLp: Now, the only difference then is this, 
that Mr. Irwin in making his computation has included 
some eight acres more than is warranted by that descrip- 
tion. He goes south of the northwest quarter—on the 
northwest quarter there is no dispute as to that being 
included in their description. JI don’t want, of course, 
to concede anything concerning ownership, but in their 
description it is included. It is the northwest. And 


d21 


1662 the 44 acres across the north half end of the south half 
of the southeast quarter is included and comes down to 
the railroad here much further distance and includes some 
eight odd acres in addition to the 8}. 

The Court: I see. That is the only point then between 
you really. 

Mr. Curperrietp: Then as the figures of Mr. Irwin, I 
saw Mr. Irwin this morning and he wanted to go out 
in the country and I suggested to him, I inquired how 
he got those figures and he explained very curteously 
how he did. He will be in tomorrow morning at 9 o’clock 
he said, and I would like to ask him a couple more ques- 
tions on cross-examination as to the difference in the 
areas beyond the 44 acres. 

The Court: Well, I will let him correct it then. 

Mr, Curperrigetp: Yes. And also Mr. Irwin has dis- 

covered that he has made in these two pieces, Mr. 
O’Conor, in his addition of these two pieces a mistake of 
10 acres. 

Mr. O’Conor: Where? 

Mr. Curperrietp: It was in setting down the figures, 
it foots up 58 or 59 acres and he has set it down in his 
total as 69 acres. These are the figures, are they not, 
Mr. Heilbrom? 

Mr. Hermprom: Yes, sir. , 

Mr. Currerrietp: And as to the total he said 446, and 
he ineluded 10 acres here and 19 there, and an acre there 
and 8 acres there, that are all embraced within this 
description. 

The Court: I will allow you to recall Mr. Irwin and 
correct what seems to be an error. 

1663 Mr. Cureerrietp: He wants to make a correction any- 
way. 

The Court: That seems to be the only difference be- 
tween you, 


322 


Mr. CureerFieLp: He wants to make a correction as to 
the error of 10 acres in his computation which was purely 
an error of transcribing. 

The Court: I will allow you to recall him for that 
purpose. You may call in the jury. 


Epwarp SHANNON, a witness for the plaintiff, recalled 
for further examination, testified as follows: 


Direct Exanunation by Mr. O’Conor. 


My name is Edward Shannon, I live at Shippingsport. 
Shippingsport is located, with reference to the City of 
1664 La Salle, about three-quarters of a mile south of the city 
limits on the south bank of the river. JI know where 
Shippingsport bridge is. I live about 220 feet east and 
south. Shippingsport bridge crosses the Illinois River. 
I have lived here about 16 or 17 years. Prior to that 
time I lived in the City of La Salle. 


1665 My business is fishing. I have been engaged in it ex- 
clusively since 1905. I have been acquainted with the 
Illinois River since 1880. I took up my residence south 
of the river in 1895. During that time my occupation 

1666 has been mining coal in the winter and some in the sum- 
mer. Otherwise my occupation has been fishing. I live a 
little over 300 feet from the river. I know the road that 
runs east and west along the bluff, they call it the Deer 
Park Road. I live north of the road. 


1667 From 1895 down to the present time I would see the 
Illinois River every day during the fishing season unless 
I was ill. JI can see over the bottom lands from where 
T live. I fish all the way from Rockwell shaft on the bot- 
toms and then I would fish in the lake. 


In a general way I know the condition of the Illinois 
River as to levels prior to the turning in of the Sanitary 


323 


District waters, and know it since in a general way. 

1668 Gathered my information from taking observations. I 
took notations for a while. I don’t know whether it was 
for the defendant or the Washington Hydrographic Office. 
I don’t remember what years. It was since the drain- 
age water was turned in. 


There has been a difference in the stage of the Illinois 
River since the Sanitary District water was turned into 
1669 the valley. The river is a good deal higher than it was 
before the drainage was turned in; rising every year; it 
is getting higher each year. In the last three years it 
has raised each year, the low water stage is higher than 
the preceding year. I have some permanent marks by 
which I can determine the rise. There is a stone in front 
of the south pier of the bridge that used to go bare 
1670 prior to the turning in of the water and when I used to 
take measurements I went to the rock to determine it. It 
was right in front of the south pier of the Shippingsport 
bridge. I found that this season the general average was 
about 44 feet over that as compared with former years 
prior to the drainage water coming in. At the bridge 
there is also piling, the piling of the bridge, but there 
never was any mark placed so that I could determine 
exactly to estimate from the pilings. The pilings were 
west of the Shippingsport bridge. I don’t know when 
they were put in there originally, I was not there. 


1671 Prior to the turning in of the water of the Sanitary 
District I should say those piles on the west side of the 
Shippingsport bridge could be seen every year in low 
water. Some of them would project two feet above the 
surface of the water. They were not uniform in height, 
some of them would be five inches out, some six inches 
and some two feet. I have not seen them over the water 
since about three years after the water was turned in. 
T did not keep any correct track but I think it is about 


o24 


1672 three years. I have seen them under water, passing 
over them with a boat in low water in the summer. It 
is pretty hard to determine how far below the surface 
those pilings would be in low water. I think the last 
time I saw them they would be six or seven inches under 
water at low water. 


1673 Also in using my nets when I set them in low water 
they would be in the path where formerly it was tramped 
down hard. And I set four foot nets and it was covered 


in low water. That is low water on the land formerly 
along the river where there was a path. That was on 


the south side where the path was. Where the path is 
at the present time I set the nets and the water covers 
the four-foot net. 


1674 The water covers the outlet of the lake to the river. 
The body of water which went down there, that lake out- 
let, 1s located at the south of the canal and comes out 
in the river about at the point where the canal comes into 
the river. That is what I call the lake. Formerly I 
used to have to get out in low water and push the boat 
through. There would be just a little water running out 

1675 of the lake that kept the mud wet and I would push it 
through. Late years I row right through the water into 
the lake with a seine boat. 


During the summer I would spend two or three days 
a week on the river. I fish in April and start in July, 
August and September, and on until it freezes up. 


The water falls slower, the flood water is slower going 
down. I don’t think there is much difference in the rise 
of the river, but if there comes a heavy rain, of course 

1676 the harder it rains the quicker the river will rise. The 
general level of the river is higher. 


325 


Cross-Examination by Mr. Chiperfield. 


I was formerly engaged in mining coal until the win- 
ter of 1895, since which I have been engaged in fishing. 
1677 Formerly lived in the City of La Salle and moved over 
to where I now live in 1895. It would be about 17 years 
1678 ago. Seven years ago I was living in Shippingsport. 
I was generally acquainted with the [llinois River. I 
did not know the land Sam Waugh farmed at the time 

he farmed it. 


1679 That is the bayou which Mr. O’Conor called a lake on 
the plat, which you have, and which empties in near the 
Illinois and Michigan Canal. I am acquainted with that 
locality. I live close to the Shippingsport bridge, about 

1680 180 feet from the south end of it. Have been acquaint- 
ed with the curve in the river since 1890. I don’t know 
the height of the bank on the side of the river opposite 

1681 Peru; on the lands Waugh was farming. As a guess I 
would say that the bank in low water was ten feet above 
low water. 


1682 @. Then since 1900, when you say there was low 
water on the river, about how low from the top of that 
bank would low water be since 1900? A. Well, that 
question is pretty hard. 

Q. I wish, Mr. Shannon, if you can, you would an- 
swer the question. 

Mr. O’Conor: Will you read the answer, please? 

(Answer read.) 

1683 Objection by plaintiff; objection overruled. 

1684 <A. Well, I couldn’t state the exact amount where it is 
below the bank now. It might be five feet. 

That is my best Judgment. When I say now, I mean 
general low water. I am not testifying about it to-day. 
The river has raised during the past 30 days 18 or 20 

1685 inches. When it started to raise it was not the lowest 


326 


1686 water I have seen since 1900. It would take some time 
to answer that question. I could not testify under any 

1687-9 circumstances to the lowest water I have seen since 
1900. When I say there is a difference in the river since 

1690 1900, I refer to low water. The lowest water I ever 
saw in the river before 1900, was at the rock that I 
swore to that I stood on and fished. At the present time 
the level of the water is about seven feet higher more or 
less. 


In June or July this summer the river was about a 

foot lower than it was before it commenced to rise. It 

1691 might have been 14 inches. Altogether the river was 
41 feet lower than it is now. 


T only heard about the drainage being turned in some 
1692 time in 1900. JI have previously testified as a witness 
against the Sanitary District in former cases. At that 
time I might have testified that the drainage canal was 
opened in the summer of 1899, I think late in the sum- 
1693 mer. I think that was my testimony. The Sanitary 
District channel might have been permanently opened 
on January 17, 1900, but it was opened and water turned 
into the Illinois River before it was permanently opened, 
1694 in the summer of 1899. I refer to July or August, I 
eouldn’t say which. I don’t know what they did on the 
17th day of January, 1900, or whether that was the first 
1695 time the Bear Trap dam was lowered. The water could 
not be turned into the Illinois River before it was in the 
Sanitary District channel. 


In the summer before when they turned it in, the 

1696 water rose probably a foot. I could not say whether or 
not on the second day of January, 1900, for the first time 

in the history of the world, the water from the Chicago 
River was turned into the Sanitary District channel, and 
that on the 17th day of January the gates were opened 


327 


1697 and the flow commenced. They turned on the water. 
They may have shut it off that winter and turned it on 
the following summer and then it would throw me off. 


On the former trial I testified that before they turned 

1698 the water permanently and kept it on, they had shut 

it off. They turned it on in the middle of the summer 

and raised the river and then shut it off and opened it 

up again in the fall and it has remained at that ever 

since, remained up. The summer before it was perma- 

nently opened I noticed that the water came up in the 

river. It came up a foot and I think it stayed up a cou- 

ple of weeks, two or three weeks, and then it went down 
1699 very low. That is the last time I saw the rock. 


On the former trial I might have testified that I had 

not seen the stone which I speak of for 10 or 12 years 

1700 prior to the time, 1908. I may have testified that I said 

I did not see the stone in 1906 and that it had been 10 

or 12 years since I saw the stone. The last time I saw 

1701 the stone might have been 1899, 1900 or 1901. During 

the 25 years, I have known the rock, I have seen it prob- 

ably a dozen times. I don’t know whether on the trial 

in 1908, I testified that I had only seen the stone three 

or four times. I cannot remember how many times. I 

saw it five or six different times. The stone was located 

in front of the south pier, the surface is about two feet 

square, it rests on the crib, it is in the erib. The wood 

1702 work on the outside stood two or three inches, maybe, 

above the water. I would not swear whether the stone is 

there now or not. I cannot remember the lowest water 
1703 I ever saw in the river in comparison with that stone. 


IT don’t remember whether I testified in 1908, but I 
measured the water all over the stone since 1900. If I 
1704 testified to it I done it. 


I don’t remember whether I said in 1908: ‘‘T think the 


328 


last season I saw that rock, I think it was a pretty dry 
season, if I remember right; part of the season was dry 
and very low water.’’ 


1705 If I said at that time that the two foot measurement 
which I took above that rock indicated the lowest water 
I had known of in the [Illinois River since the Sanitary 
District water was turned in, it is true. I don’t know 

1706 how much lower the water has been on the rock than 
two feet. J cannot remember. I cannot give any time 
that would be anywhere near the time. 


I may have testified that at one time I tested with my 

oars as I went by the bridge and found the water was 

1707 standing one foot on the rock. The water has not been 

four or four and a half feet over the rock ever since the 
water was turned in, but it has been this last year. 


It would be absolutely impossible for me or any other 
man‘to answer what has been the lowest water on this 
rock that I have seen since the Sanitary District was 
turned in. 


1708 Now the water falls very slow, but the rise depends 
on the rains. Here we get the result, if they lower that 
dam for two hours; after the time they lower it there, it 
will show here in about two hours. It might not be the 
same two hours and it might be ten hours; the time will 
correspond with the time there. I don’t remember that 
I testified in 1908 that before 1900 the water used to fall 
very fast. Before 1900 I have known it to fall a foot in 

1709 24 hours. I have seen it fall 18 inches in 24 hours. 
The reason I testify 12 inches now instead of 18 as I did 
in the other trial is that I am a little more conservative 
now. 


JI don’t know whether I testified in 1908 that in my 
judgment the Illinois River had raised from its usual 
condition before 1900, 18 inches. It it was it was cor- 
rect. 


329 


1710 Q. I want you to answer my question. Didn’t you 
say in 1908, that in your judgment the [llinois River had 
raised over its usual condition 18 inches? Wasn’t that 
your testimony in 1908? A. Well, if it was, I guess it 
was. 


(). J am not asking you if it was your guess it was. 
I am asking you if it was? A. If it was my testimony 
then, it was. I don’t remember now what it was. 


1711 I think my testimony in the Brannan case was the gen- 
eral average of the river at that time was about two feet 
and eight or nine inches. If I testified it was two feet 
and eight or nine inches, then I testify that it is 44 feet 
now on a genered average because since last July its 
general average has been 44 feet. I don’t know there has 
been no change of flow of the Sanitary District channel 
for more than 34 years. I know that the rise of the 
water was 14 inches in July and it has maintained that 

1712 average since. Since then it has raised 20 inches in the 
last 30 days; 34 inches altogether. 


1718 Before the water started to rise the 14 inches, in July, 
it was probably close to four feet above the rock. I made 
no measurements except in October months. 


I understand the [linois River is influenced by rains 
within its water shed and that its water shed extends 
over into Indiana, also into Wisconsin, and that if there 

1714 are rains in these points it raises the river. I know the 
river rises according to the rainfall. Just as it did before 
1900. | 

1715 It is my opinion some parts of the bottom lands have 
been raised by the overflow from the river. Down in the 
timber along the river bank in the vicinity of Shippings- 

1716 port bridge there is a rise probably of four or five feet. 
The entire channel in the river is getting deeper all the 
time; the river channel is wearing away. 


330 


I did not say in the Brannan trial that the river chan- 
1717 nel had worn away four or five feet. There is a differ- 
ence in the change of the current as compared with 1900. 
Before 1900, the current was not over a mile an hour, 
since it is two miles. I said in the Brannan case I know 
that the current runs stronger than it formerly did. IL 
1718 might have said it runs twice as fast. I did not say it 
runs three miles an hour. I said it may have gone as 
fast as two and a half miles an hour. ‘The current is 
faster in high water than in low water. 


1720 Ata medium stage at Peru the current is faster in the 
vicinity of the bridges than it is at high water. Some- 
times the fall of the water increases the current when 
it is falling. 

1721 + I think the water was higher before 1900 than it has 
been since. I saw it going over the protection bank at 
Lock 15 near La Salle before, but never have since. There 

1722 may have been two feet on the bank. It was in June of 
the big flood year; I don’t know whether it was in the 
eighties or nineties. The highest since then within a 
foot or eighteen inches of the earlier high water mark. 


1723 When the river extends from bluff to bluff the stream 
would be a little over a mile in width, possibly a mile 
and a quarter. In places it would be ten feet on the bot- 
toms, some fifteen, some twenty. Between extreme low 
and extreme high water the difference is 22 feet. 


1724 I took the gauges on the Hlinois River correctly and 
sent them in correctly after 1900. I don’t remember the 
1725 lowest water I saw by the gauge readings. 


1726 If I said that upon a former occasion upon one day 
during the time I had this gauge established that I saw 
the water fall 12 inches within 24 hours, I did, that is all. 
I don’t know. I have seen a fall of 12 inches in 24 hours 
since the drainage channel was opened. 


331 


1727 @. Then what do you mean when you say that the 
river falls as fast since as it did before? A. Why, the 
water was shut off from the drainage. 


Q. How do you know? A. Why, they shut off the 
drainage, it dropped right down 12 inches. 

1728 I assumed that they did so from the fact that the water 
fell that way. When the river rises we say it 1s because 
the Sanitary District is sending down more water, and 
when it falls we say it is because they have shut the water 
off. I do not know as a matter of fact that the flow of 
the Sanitary District for the last three and a half years 

1729 has been constant and continuous. I don’t believe it. 
I am assuming from what I see on the river. I never 
was at Lockport, never have seen the Drainage Works 
and have no knowledge of the way they flow the water. I 
simply mean when I say that the river fell 12 inches that 
T concluded that the Sanitary District shut off the drain- 
age water, since 1900. I have no knowledge about the 
matter, just concluded it. 


There was a path by the river side where I was form- 
1730 erly in the habit of walking on the south bank of the 
river, east of the Shippingsport bridge four or five hun- 
dred yards. In low water before 1900 the path would be 
three or four inches above water. Sometimes it was 
less and sometimes level with the water. In the lowest 
water before 1900, I could not tell you how far that path 
1731 would be above the water; maybe three or four inches. 
A rise of three or four inches would put the path out of 
commission unless you wanted to get your feet wet. 


1732 I fished during July. The water was not always the 
same level. I cannot say how low I have seen the water 
in relation to that path since 1900; I never took meas- 

1733 urements. I set nets there on the path the last two 
years. Think there have been times since 1900 when 


332 


there was not four feet of water on the path. Cannot 
say how deep it was. I don’t remember seeing the path 
since 1900. | 
I spoke about the piles below the Shippingsport bridge. 
There was some old work there that had been connected 
1734 with the bridge before. They stood two feet out of the 
water, the highest of them, but not all of them. In the 
lowest water I have seen on the Illinois River those piles 
are two feet and a half above the water. That was before 
1900. The piles are there now on the down stream side 
1735 below the piers. JI have seen the piles since 1900, L 
think it was the first year. I have no idea how much 
1736 water is on the piles to-day. 


I spoke about a lake where I used to pull my boat 
through before 1900. I was fishing. Have been there 
every year except the flood year. I now find water where 

1737 I used to drag my boat, 18 to 20 inches of water in the 
ditch this season. Three years ago I had to push my 
boat through. I could not row through. There was not 
more than a couple of inches of water. The lake is on 
the same level as the Illinois River. When there was only 
two inches of water in the lake, I could not say how 

1738 much water there would be on the rock or the piling. 
I pushed my boat through before and since 1900. The 
difference between before 1900 and three years ago is 
probably three feet. 


I said the fish were killed by the Sanitary District’s 

1739 water. I think the water dirtier this season than .it 

ever was before; I don’t think the proper amount of 

water necessary to dilute it is sent down. It is my 
1740 guess. | 


We conclude every time the river falls they are shut- 
ting off the flow of water. The fish died in July. T think 
the water dirtier, it was dirtier than it was before 1900. 


333 


The first time they turned the water in it killed all the 

1741 fish in the net. I do not know that the water since 
1900 has been purer and freer from contamination than 
it was before. 


1742 There is no exact stage of water that corresponds with 
the same period year after year. July may be a high 
month one year and a low month another. The low 
water month of one year 1s changing and varying. The 
only way of getting at the stage of water in the Illinois 
River is by taking the very lowest stages and compar- 
ing them with the present; taking the two lowest stages 
of water before and since. In order to make a fair com- 
parison you have got to take corresponding stages of 

1743 water, low water before 1900 and since 1900. I have 
known the river to be high in January, February, March, 
April and every month of the year. 


IT am a tenant of the La Salle County Carbon Coal 
Company. I have a piece of ground rented from them. 


1744 B. W. Gostromsxki, a witness for the plaintiff, being 
sworn, testifies as follows: 


Direct Examination by Mr. O’Conor. 


My name is B. W. Gostomski, I have lived at La’Salle 

for 26 years. Forty-two years of age. My business is a 

butcher. Have a slaughter house located south of the 

Illinois River, half a mile west of the Shippingsport 

1745 bridge, about a mile from the bridge that crosses Mc- 
Cormick’s slough. 


I knew Saw Waugh. I remember the land he farmed. 

I don’t know the section that it was on. You showed 

me a map over in the office. The land you showed me on 
1746 the map is the land I refer to. I was on the land from 
1893 until 1898. I was on in December and January, we 


304 


had eattle on there. Some months we had 25 and some 
months 80 feeding on the corn stalks. 


1747 The land was planted to corn. I don’t know the num- 
ber of acres. We let the cattle run there six weeks or two 
months. I have never farmed the land myself. The 

1748 land was dry at that time. 


. Cross-Examination by Mr. Chiperfield. 


I made the arrangement with Waugh. He got five 

cents a head. He had some cattle and horses there, quite 

1749 afew. We generally had about 25 or 30 head of cattle 

there, not 80. They were fat cattle bought on the market. 

We put them in there and used them as needed. When- 

ever we had to kill one we would take it out. The cattle 
would be out in January. 


1750 Noan Mostouuer, a witness for the plaintiff, being 
sworn, testifies as follows: 


Direct Examination by Mr. Butters. 


My name is Noah Mostoller, 69 years of age, live south 
1751 of La Salle and have lived there since the summer of 
1891. 


IT knew Mr. Waugh. I worked for Waugh on this land 

1752 that you call my attention to west and south of the 

river. I worked there in 1891, went there in July, and 

1753 stayed until the spring following. I have continued to 
work there ever since. 


I have been over all this bottom land in Sections 21, 

1754 22 and 23, between 1891 and 1903. Since that time I 
have not paid much attention to the bottom lands at all. 

I did different kinds of work there, cutting timber, cut- 


ting it for the mines, husking corn, cutting brush and so 
forth. | 


335. 


A few years ago they raised corn all over the bottoms. 

1755 Not very much but several chunks of timber in there. 

I do not think there was any corn raised on the bottoms 

in 1892; I cannot hardly tell because it has been such 

1756 a long time; 1894 they had a good fair crop in corn. 

The next year the corn was fair. Prior to 1900, I used 
1757 to get some corn out of there that was pretty fair. 


I husked there every year from 1891 to 1903 with the 
exception of two years. The land seemed to be all right 
during the winter, I cannot remember whether there was 

1758 any water on it. The water used to come in the spring. 
I never knew it to come in as much as I could remember 
during the winter. 


After 1903, I never touched any corn there. Since 
1759 1903 not very good crops. 


I lived over the bluff from the land. I could see down 
on the bottoms if I went some distance. Not near the 
crop this year that there used to be before 1900. Used 

1760 to husk 60 bushels a day. Used to be able to pull out 
1761 30 bushels of corn to the load. 


Cross-Examimation by Mr. Chiperfield. 


1762 I live on Mrs. Waugh’s land at the present time. I 

1763 was never around La Salle before 1891. For 18 years 
I never was in the bottoms here through the spring of 
the year, but I was here usually until March. I husked 

1764 corn in the fall. Besides husking corn I cut out cap 
pieces. I worked pretty near all over the piece the com- 

1765 pany is supposed to own. There was some very good 

1766 corn raised there during that time. I cannot say what 
it would go to the acre, I never measured it. It would be 
only guess work. 


1767 . Between the McCormick slough and the Illinois River 
from 1891 to 1903, I could not say how many acres of 


836 


corn I saw there. I cut off lots of timber, it was found in 
1768 two different bunches. The timber was located pretty 
well in the middle of the land I worked on. 


1769 1900 and 1901, there was a nice crop there. I think 
they were good. 


Reeess taken until 1:30 P. M. 


1770 November 19, 1912, 1:30 P. m. 


Court met pursuant to recess. 


Owen O’Keere, a witness for the plaintiff, being sworn, 
testifies as follows: 


Direct Examination by Mr. O’Conor. 


My name is Owen O’Keefe. I live in Peru Township, 
am 54 years of age and have resided there since 1890. 


I worked on a part of Section 21. I lived about half 

1771 a mile south. Waugh’s residence was on higher ground. 

1772 The land which lies south and west of the Lllinois River 

and east of the McCormick slough is where I worked. 

I worked there in 1891 and 1894; worked 60 acres. I 

1773 used it for raising corn. I raised a good crop in 1891. 

1774 Most of it ran about 75 bushels. After husking have 
1775 seen stock turned in there. 


1892 was a very wet year. A little was plowed in the 
spring but nothing raised. In 1893, I did not farm the 
land, but corn was raised there. In 1894 got a corn 

1776 crop, I think about 45 acres. It went 75 bushels to the 
acre. After husking, stock ran on the land. In 1895, 

1777 there was a full crop of good corn. 

1778 In 1896 T farmed the land across the road from 
Waugh’s land. That year it was in corn, a good crop; . 
the same in 1897, the same in 1898 and also in 1899. The 

1779 corn ran 70 bushels to the acre. 


337 


1780 In 1900, all of the land was put in corn. There was a 
good crop. In 1901, all of the land was put in corn and 
they raised a good crop. 1902, no crops were raised in 
the bottoms. 1903, there was not much corn raised in 
there, probably a third of it. 

1781 I saw the land yesterday. This year probably a third 
of it in crop. I drove through the land two or three 
weeks ago. The corn is in pretty fair condition, what 
there is of it. I saw some of it that was pretty fair corn. 
I examined it in one place. 

I am acquainted in a general way with the flow of the 
Illinois River prior to the year 1902, and since 1890. 

1782 Have been acquainted with it since 1902, down to the 
present time. I observed that the water is higher since, 

1783 always higher; not able to get on the land as early as 
they used to. There is no difference between water con- 
ditions in the fall than there was from the years 1891 to 
1902. 

1784 I was acquainted with the land that lies west of the 
Illinois Central and south and east of the Illinois River; 
also acquainted with the land that lies east of the Llh- 
nois Central and west of the Big Vermillion. Never 
farmed any of it. It was farmed during those years 
from 1876 to 1885. 

Mr. O’Conor: Take the land now that lies west of the 
Illinois Central right of way and south and east? 

AS 6Y GS, SIT: 

Q. Of the [linois River, how long were you ac- 
quainted with that land? A. Nine years. 

1785 The Courr: What nine years are you inquiring for? 

A. From 1876 until 1885. 

The Court: Well, I think that is pretty remote. I 
think if they object to it I will sustain the objection. 

Mr. Cureerrietp: They have gone into it in connec- 
tion with this land, 


338 


Mr. O’Conor: No. 

Mr. CuiperRFIELD: Oh, yes, you have. 

Mr. O’Conor: In connection with this land? 

Mr. CHrpPErRFIELD: Section 23, and as long as he has 
expressed his opinion I don’t think I would lke it to go 
out to be left unexplained. 

1786 Mr. O’Conor: To what use was that land put during 
those years, Mr. O’Keefe? 

They were raising full crops there except the two 
years, 1876 and 1881. In 1876 I think about half a crop 
and in 1881 there was a good erop raised but did not get 
time to pick it; the flood came along and they lost it. 

I was acquainted with the land that lies east of the 
Illinois Central Railroad during those years. They 

1787 raised the same character of crops with the exceptions 
that I have already noted. 


Cross-Examimation by Mr. Chiperfield. 


From 1876 to 1885 I lived across the river in La Salle 
1788-9 Township, right alongside of these lands, right where 
the Big Vermillion runs into the [llnois River, about 
1790 half a mile from the lands east of the [linois Central 
Railroad. I lived right where the Big Vermillion emp- 
ties into the [llinois. 
During that time there was high water there. My 
house stood on the same level as the lands. It flooded 
1791 my house and put the fire out. The bottom lands were 
1792 flooded at the same time. I have never seen the water 
as high as it was on the 18th of February, 1883, during 
1793 those nine years. I don’t know whether the water the 
last 15 years has been as high. I moved out in 1885 into 
Dayton Township and moved back to Peru in 1890. 
1794 I testified in 1908. 


Q. I will ask you if this question was not asked by 


339 


Mr. Wiley at that time, speaking of your house: ‘‘ How 
long did it stay in that condition?’’ to which you made an- 
swer, ‘‘In December, 1908, we were out of the house just 
a week, from Sunday until Sunday.’’ A. We might be 
out of the house. JI don’t remember whether I so answer- 
ed but we were out of the house a number of days, maybe 
a week. 

1795 Q@. Then was the question asked you, ‘‘The high water 
was up to your house during that time?’’ to which you an- 
swered, ‘‘No, it was not, it went down Thursday or Fri- 
day, it went down.’’ A. Somewhere along there. 

(). Then was this question asked you, ‘‘When did it 
come in?’’ and you answered ‘‘On Saturday evening.”’ 
A. On Saturday some time. 

Somewhere along there, I don’t remember that exactly ; 
it was in there a few days. Of course we did not go back 
in the house right away after it went down, had to wait a 
day. I cannot tell whether the water in 1902 got as high 
as it did in 1883. 

1796 @. Then was this question asked you, ‘‘How was its 
height as compared that year that you were flooded out, 
what was the condition?’’ Was that question asked you? 
A. The condition, I don’t remember. 

(. Was this question asked you, ‘‘What was the con- 
dition of the height of the water that rose in the river 
those two years as compared with 1883?’’ ‘To which you 
made the reply, ‘‘It has never—it must have been three 
or four feet higher in 1883 than ever I have seen it?”’ A. 
Yes. 

1797 @. Then was this question asked you: ‘‘It never since 
then has been as high as you saw it in 1883?’’ To which 
you made the answer, ‘‘No, I don’t think it ever was.’’ 
Did you make that answer? A. I presume I did say also 
it was not in La Salle Township. 

I don’t know how much of the lands east of the Illinois 


340) 


River were farmed in any year before 1900. I don’t know 
anything about it only from 1876 to 1880. Between those 
years it was all farmed except those two years, 110 acres. 
1798 @. .Why don’t you know there is only about 70 odd 
acres in there? A. That is what they call it, 110 acres. 

. I don’t care what they call it, don’t you know there 

is only 70 odd acres in there? A. It was called 110 acres. 


I never farmed the land any time. There was a corn 
erib on the south side of it. The C. B. & Q. was not there 
1799 then. The ‘‘Q’’ road runs through there now. The place 
1800 where the crib stood was higher than where my house 
1801 stood. The piece west of the Illinois River between 1876 
and ’77 was farmed by Frank Canfeen. I had nothing 
to do with it. They called it 85 acres. 
. Why don’t you know there is more than 150 acres 
in there? A. They called it 85 acres then. 


I farmed some of the Waugh land right north and a 
little west of the Waugh house, 60 acres one year, 1892. 
1802 I tried to farm it and could not, that was the flood year. 


I don’t remember in the Brannan case that I gave testi- 
mony to the effect that there was no better corn land on 
the Illinois bottoms than the Brannan land; I don’t re- 
member saying that the Brannan land averages about 60 
bushels to the acre. 


Q. I will ask you if Mr. Duncan asked you this ques- 
tion during that trial: ‘‘During the seven years when you 
say the crops were not affected by water, you think there 
were about how many bushels per acre?’’?’ To which you 
made answer, ‘‘About 60 bushels, I think?’’ A. Yes, 
probably, I meant that for the average of those seven 
years. 


1803 In 1898, the flood damaged a part of that land. The 


damage was along the latter part of June after the crop 
was in. I do not think they took a third off. The water 


341 


stood on the land in low places for several days. I am 
speaking of the Waugh land. 


1804 I could not say how much difference in elevation there 
is between the highest and lowest piece of the Waugh land. 
I don’t think there is any place where the difference is as 
much as five feet. 


1805 ‘The flood in 1898 probably spoiled about 100 acres. I 
don’t know how many acres were in crop on the Waugh 
land except what I have heard. I think there was years 

1806 when there was between three and four hundred acres, 

along from 1893 to 1897. 


1807 The Court: I want to strike from the record this wit- 
ness’ testimony respecting the crops on this land prior to 
the year 1885. It is my desire to confine the testimony, 
so far as possible, on both sides, to the first fifteen years 
next preceding the time when the Sanitary District water 
was turned into the valley. I think that fifteen years 
prior to that and twelve years hence then is a sufficient 
range of time for both parties to present their proofs, 
and it is not necessary to go back of that. Now, I have 
made this motion of exclusion upon my own motion and 
it may be that counsel on both sides feel like objecting to 
it, and excepting, and I will not call upon them to state 
their objections or exceptions, but I will concede each of 
them an objection and exception to my ruling in this in- 
stance, and to what I have said. 


Wituiam Brannan, a witness for the plaintiff, being 
sworn, testifies as follows: 


Direct Examination by Mr. O’Conor. 


1808 My name is William Brannan, I live in La Salle since 
1869. I farmed a part of the land on Section 21 south of 
the river. I mean the land that lies south and west of the 


342 


Illinois River and east of the McCormick Slough. This 

1809 is the fourth year I have been farming it; started in 1909. 
Prior to 1909 I never farmed that piece of land or worked 
on it. In 1909 had about 30 acres rented. 


Owen O’Kuzre, a witness for the plaintiff, being recalled 
for further cross-examination by Mr. Chiperfield, testi- 
fies as follows: 


Q. During the years 1891, 18938 and 1894, what rent 
did you pay for this land? A. ‘Two-fifths. Paid it to 
1810 Waugh and Braun. They sub-rented to me. 


Wintuiam Brannan, a witness for the plaintiff, recalled 
for further examination, testified as follows: 


Direct Examination Continued by Mr. O’Conor. 


It was located in the northwest part of the section. I 
rented more but I did not get more in. I rented a couple 
1811 of hundred acres. Besides myself there were others 
that tried to farm the land. Got on the land that year 
June 20th. There was water on a lot of it. The land is 

not uniform although in places it might be six inches or a 
foot higher than others. J intended to put in about 100 
1812 acres and got in 380. I went in over the road, it was awful 
wet. The road is on the level with the land. The road 
had been graded up. When I got on the land that year, 

the land that we put in crop was in good shape to work. 
1813 From the 20th of June on it was dry until fall. Raised 
good corn but the water rose on it in October. The corn 
had matured. We got in on the ice and husked it about 

the month of November. The corn that we got on top was 
1814 dried out but what we got in and gathered after the 
water went down on the ice, it rotted, was water-soaked. 


343 


Mr. Cosgrove had 20 acres and Mr. Dierce had 20 acres 
and two other men, 10 or 20 acres apiece, I don’t know 
their names. Aside from that none of the land was crop- 
ped. The pieces did not join, scattered. 


1815 The water came up the latter part of the month. In the 
year 1910, we worked a part of the land, started to plant 
in June and got in 80 or 90 acres. Mr. Dierce had 20 
acres and Mr. Cosgrove had 20 or 25 acres. They did not 
join. There were three others there who were farming 
but I don’t remember their names. They had 10 or 20 

1816 acres apiece. We got in on the same road. The land 
was dry that fall when we husked. The corn, a great deal 
of it, was soft. We sold and shipped it but it did not 
grade. I don’t know why it did not grade. There was a 
good deal of milk in the corn when we husked it. Some 

1817 of it had matured and some of it had not. 


1911, we started to plant the 5th of May, had a dry 
spring and the roads were dry and good. Got in 180 or 
190 acres. The land all joins but the river at one end 
cuts it off and the slough cuts it off at the other end. We 

1818 started husking on the 5th of October. It was dry. The 
condition of the corn was very good. The corn was good 
but the water raised on it. The water started to come 
up in September. In November and October most of the 
corn had matured and was dry but there was so much of 
the corn that had been in the moist that we put it all in 
together and spoiled it. The ground was wet at that time. 


1819 When the water came up we cut up the corn stalks and 
piled them together and made a kind of corduroy road. 
In the beginning we took out large loads and later on when 
it got so soft we just made wire cribs and piled the corn 
up any way we could. We had six horses hitched on some 
of the wagons. 


The water continued to rise and we lost quite a bit of 


344 


the corn. We put up two temporary cribs, one near the 
1820 river and the other near the cross road. We couldn’t get 

out with the corn. We got the corn out after it froze, with 

sleighs and wagons on the ice. The corn that we got in 

the cribs that was not wet was good corn. What was 

husked in the wet weather blackened the corn that was put 
1821 in the cribs. We shipped it to Chicago. 


This year we got on the land the first day of June. We 
took the feed and tools in with the boat and the horses 
and mules we got in through the mud with the wagons. 

1822 The land was all muddy, you could not get in with a load. 
The horses and mules got mired. 


Put in 160 or 170 acres this year. A good deal of the 
corn has got milk in it, soft, not matured. We are husking 
it at the present time. 


Cross-Examination by Mr. Chiperfield. 


During the time I have been working this land I have 
become familiar with the surface of it. The land is pretty 
level. Probably the difference in elevation between the 

1823 high and low parts would be a foot to a foot and a half. 
During the summer months the river would be five or six 
feet below the bank along where there is a grove of trees. 

1824 When the water is at the lowest level it is probably ten 
feet below the level of the bank. 


With the exception of the one time which I have told 
you the water would stay down until the latter part of 
October. Some parts of the ground might be a little wet 
the latter part or middle of June. By July Ist, the land 
is well out of water and the river would fall down and 
stand there and we would go on cultivating. 

1825 I don’t remember exactly how much corn we got in 1900, 
I think two or three hundred bushels. When we got in 
to husk the water rose and we could not get the rest. Be- 


345 


fore the water rose it looked as if it would yield 90 bush- 
els to the acre. 


1909 was a wet season, a wet spring and a wet fall. I 
don’t know that the rainfall was 40 inches that year. I 
have no means of knowing about it. I don’t know that 23 
1826 inches of rain fell between the first of April and the first 
of October in 1908. I don’t remember what we did with 

the corn. 


1827 In 1909 Cosgrove and Dierce and several others had 
pieces of corn in there. Altogether there was something 
better than 100 acres of corn. 


1910 started to plant early and including my corn we got 
in about 150 acres. I think I got about 800 bushels off. 
There was nothing to prevent my getting a crop off in 

1828 1910. The corn ought to run between 50 and 60 bushels 

1829 to the acre. I am not positive but I think I got 14 cents 
at Chicago. I rented it on shares, two-fifths. I delivered 
the landlord’s share to him. 


I think I shipped seven cars of shelled corn, that year, 

running about 700 bushels to the car. I shipped the land- 

1830 lord’s share, too. That would be about 4,900 bushels of 
shelled corn. Got 444 cents for it. 


1911, got in 180 or 190 acres. Started in the 5th of May. 

The corn was good that year. The water commenced to 

come up in September. That year I got 7,800 and some 

odd bushels of corn. I shipped it and got 56 and 58 cents 

for it; 7,800 bushels was all of the corn, including the 
1831 landlord’s share. I paid two-fifths rent that year. 


This year got in 160 or 170 acres. It was not good corn. 

I don’t know what date we started to put it in, probably 
the 5th or 6th of June. The corn ran about 60 bushels. 
The part that was planted first, the first week or two, 
' would dry if it was kept separate, the corn planted after 
that is soft. The corn is not dented. When you squeeze 


346 


it the milk will come out. That kind of corn in every one 
of the fields. The corn planted the first two weeks has 
turned yellow and matured. We are husking it. I am 
putting the corn which I now say is milky in the crib with 
the rest of the corn. The crib is on the Dierce farm ad- 
joining it on the south. One is a double crib. They are 
about 64 feet long and there is a single crib 64 feet long 
and seven or eight feet wide, 10 or 12 feet high. We have 

1833 all of those cribs filled now about four or five feet high. 
I think we have got about 3,000 bushels of corn in there 

1834 at the present time. I think they have husked between 
50 and 60 acres. There is 100 or so yet to husk. The 
corn won’t grade. I don’t suppose you could get over 25 
cents a bushel for it. New corn is worth 40 cents. Alto- 

1835 gether this field would probably yield nine or ten thou- 
sand bushels. 


Cosgrove has corn in there, about 25 acres, and his corn 
will yield about the same as mine; will be something like 
1,500 bushels more. Dierce has corn in there, about 15 

1836 acres. His is poorer corn, runs about 35 or 40 bushels, 
and that would be about 600 more. There is a Polish fel- 
low has got 10 or 15 acres, which will run about 35 to 40 
bushels, making about 600 more. No one else has any 
more corn in there this year. 


Q. So that would make 10,000 or 12,000 bushels, such 
as itis, on that land? A. Yes, sir. 


Pay two-fifths rent to the plaintiff. When this land is 
out of water it is quite fertile; seems to drain itself quite 
1837 rapidly when the river goes down. Inside of a week or 
so after the water goes down you can plow that field close 

to the water’s edge as the water recedes. 
Did not know the land before 1909. Have had experi- 
ence in raising millet on other bottoms similarly situated 
to these. It grows good, a couple of tons to the acre, 


347 


1838 Have had experience with the raising of other crops 
on this kind of land. Raised sugar cane. It takes about 
60 days to mature the first crop and the second crop takes 
about 90 days. It is a good forage food; the stock do 
nicely on it. The two crops will go three or four tons to 
the acre. 


Q. There was a question I wanted to ask you. Now this 
land you say les practically level with the exception 
that there is some places it may be a foot higher than the 
others? A. Yes, sir. 


(. Well, isn’t it true that when the water is off this 
land so you can plow one part that it is off so you can 
plow practically the entire part of the cultivated portion? 
A. Well, yes. 


1839 Q. Now, at low water stage, during the years that you 
farmed it, when the water was right at its lowest, about 
how far below the general level of this land would it be? 
I mean by that, Mr. Brannan, when the water was down 
just as far as it would get, the lowest you knew it at any 
time during the season, about how far would it be below 
the general level of this land? A. Oh, seven feet. 


Re-direct Examination by Mr. O’Conor. 


Paying five cents per bushel for husking when I fur- 
nished the team and ten cents when they furnished the 
team. 


1840 Re-cross Examination by Mr. Chiperfield. 


Have no lease for the land. Got it as long as I want it. 
I notified the superintendent that I would not work it any 
more. 


348 


ABRAHAM VoRHEES, a witness for the plaintiff, being sworn 
testifies as follows: 


Direct Exammation by Mr. Butters. 


My name is Abraham Vorhees, I live south of La Salle 
about two miles, within a stone’s throw of the Big Ver- 
million River at the bridge crossing to Deer Park on the 
west side of the river. 


1841 I know the southeast quarter of Section 23 and south- 
west quarter of Section 23 for 37 years and continuously 
since 1890. On the northeast quarter of the southeast 
quarter of Section 23 from 1890 to 1900, they raised corn 
when they raised anything; raised it every year when the 

1842 water did not interfere or flood it. 1892 was a wet year, 
with nothing raised on the land; with that exception I 
think there were nine years continuously of corn. The 
average was good. 


1842 I worked on the land every day in the summer time. We 
had good average crops. 


1844 The land on the south side of the C. B. & Q. and on the 
southwest side of the C. B. & Q., in the same quarter sec- 
tion, they raised the same number and kinds of crops as 
on the other piece. 


Mr. CurrerFretp: I just want to object for the pur- 
pose of the record to any portion that is south of the 
north 43 acres of the south half of the southeast quarter 
of Section 23. 

Objection sustained. 


1846 On that land the quality of the corn was good; two- 
thirds of it would mature. There was a part of it not ma- 
tured along the central track, containing several acres. 
On the west side of the Central Railroad I saw that land 
but not intimately with the exception of the one year I 


el tt ig 


349 


was there and did work on it. That was 1887 I believe. 
Between 1891 and 1900 I was not on it. I saw it but I 
eould not say anything definite about it. 


Between 1902 and the present time on the land east of 
the Central right-of-way, and east of the C. B. & Q. Rail- 
road track, with the exception of 1902, we had pretty 

1848 fair crops as far as I can understand. In 1902, we had 
nothing, and then two years we had a partial flood. Then 
we had a good season and since then we have had pretty 
fair crops on that one part. 


They used the land between the C. B. & Q. tracks and 
the Illinois Central tracks during the last seven years for 
raising corn. They raised fair corn on it off the part 

1849 which they did get any from. Part of it they could not 
raise any on. ‘They raised corn on the 20 acres parallel 
with the ‘‘Q’’ tracks, south of the ‘‘Q”’’ tracks. The corn 
was pretty fair up at this end towards my place, around 
the Vermillion. 


On the north and east side of the ‘‘Q’’ track in the 
northeast quarter of the southwest quarter, during the 
past seven years, they had corn on that that was good. 
There is a swale or gully running through there, possibly 
a couple of acres that is easily flooded, consequently the 
corn would be poor in through there, but the higher land 
they had good crops of corn off there the last year and 
this year also. All of it is in crop this year. That 30 

1850 acres is good. That is the piece east of the railroad. 
This year the land on the west side of the C. B. & Q. and 
east of the Central is practically of no account. There is 
possibly 10 acres of corn matured on the land that was” 
planted this year. 

Q. Now, then, Mr. Vorhees, are you familiar with what 
was the fair cash market value of that farm land in the 
vicinity of La Salle during the year 1900, we will say, dur- 


300 


ing the month of January, 1900? A. Would I be allowed 

1851 to answer that by saying what I would have given for it? 

@. No, I asked you the question whether you were fa- 
miliar with the market price, the fair cash market value 
of farming lands in the vicinity generally speaking? A. 
Previous to 1890? 

Q. 1900? A. Well, previous to 1900? 

The Court: In January, 1900, is what he is asking you 
about. 

A, All right. 

(). You may answer that yes or no. The question is 
whether you have an opinion or know the market value of 
farm lands in that community there at that time? A. My 
opinion, yes, sir. 

1852. @. Now then have you an opinion as to what was the 
fair cash market value of the land to which your attention 
has been called in Section 23, on the 17th day of January, 
1900, before the Sanitary District waters were turned into 
the Illinois Valley? A. Yes. 

Q. Now I will ask you what in your opinoin was the 
fair cash market value of those lands per acre at that 
time? 

Mr. CuiperFrietp: We object to it, no proper founda- 
tion has been laid or established. 

Objection overruled; to which ruling of the court the 
defendant, by its counsel, then and there duly ex- 
cepted. 

A. Anything over $100 would be reasonable. 

Q. Now I will ask you if you have an opinion as to what 
would be the fair cash market value of the lands, the same 
lands upon which no crop has been raised since 1900, and 
to which your attention has been called in that Section 23, 
since January, I mean on January 17, 1900, after the wa- 

1853 ter was turned into the Ilinois Valley from the Sanitary 
District? 


ool 


Mr. CHIPERFIELD: Same objection. 

Objection overruled; to which ruling of the court, the 
defendant, by its counsel, then and there duly ex- 
cepted. 

A. My opinion at the present time? 

Q. Yes. The question I asked was how much per acre 
would those lands have been worth on the 17th day of 
January, 1900, after the water was turned in from the 

1854 Sanitary District into the Illinois River? A. $100 at 
least. 


Q. No, after the water was turned in, after January 
17th, or around January 17th, taking into consideration 
what you know of these lands since? A. Did I not an- 
swer that by saying $100 or over? 


Q. Mr. Vorhees, you were asked what in your opinion 
was the fair cash market value of that land after they 
turned the water in on January 1, 1900, taking into con- 
sideration the conditions of that land as you have ob- 
served them to be from that time down to the present, 

1855 how much was its fair cash market value at that time 
under those circumstances? A. A great deal of it is 
worth nothing. 


Q. Now, then, that part of those lands upon which a 
crop has been raised during those years, what in your 
opinion was the fair cash market value of that portion on 
January 17, 1900, taking into consideration the condition 
since that time? A. $100. 

1856 JI have no opinion what the land is worth now. 


Cross-Exanunation by Mr. Chiperfield. 


My age is 53, I have lived in the vicinity of these lands 

since 1874. I lived between the C. B. & Q. switch and the 
1857 road. Where my house is located it is not quite a bit 
higher than on the bottom. The basement level of my 


352 


house is not any higher than the bottoms. In 1902, there 
was 18 inches of water in the house. That was extreme 
high water. When ordinarily the bottom land is flooded 
my house is not flooded to any great extent. The highest 

1858 ground in the bottoms is on the same level as the high 
ground on which my house is situated. The house is on 
higher ground than the lowest bottom lands, possibly 
three feet. 


1859 Jama coal miner by occupation. I work for the plain- 
tiff. The land where my house stands I lease from the 
company. I am both employed by the company and a 
tenant of the company since 1874. I do not know much 
about the crops west of the Illinois Central Railroad. I 
know that they have had good crops for I saw the prod- 

1860 uct when it was cribbed. They cribbed it alongside of 
the road. I haven’t intimate knowledge of all the crops 
but some of the crops. I have considerable knowledge 
of the land which lies east of the Illinois Central Railroad 
and north of the switch and on both sides of the C. B. & 

1861 @. Crops have been raised there. I have had a garden 
on part of it. There was 69/100ths of an acre. Raised 
all things constituting a garden, cabbage, carrots, beets, 
onions, lettuce, sweet corn. All these products grow fine- 
ly there with the exception when they are flooded. J have 
good garden truck there, except when they are flooded. 


I lease three and 69/100ths acres of ground. Three 
acres is in corn and 69/100ths acres in garden. The corn 
is right in that little point there north of the main line. 

1863 I have been raising corn eleven years this summer. 
Raise corn all the time with the exception of two seasons 
I have got a fair crop of corn off those three acres; aver- 
age something about 35 bushels to the acre and matured 
nearly every year. I lost it in 1902 and in 1904. In 1904 
the damage was done by water standing around the roots. 


_ 803 


1864 All the land in there is not adapted for garden. It is 
too low. Thirty acres on the north side would be adapted 
to gardening if it was not overflowed. This piece lying 
north of the C. B. & Q. is the tract I mean. That is what 

1865 they call the 30 acres. It is the highest ground in the 
entire bottoms there with the exception of the swale that 
runs from the Vermillion River. On the south side of 
the ‘‘Q’’ the ground is, with the exception I have stated 
of 20 acres along the ‘‘Q”’ track, almost worthless be- 
cause it is so low that the back water in the river when 
the river rises a little comes in there, and while you can- 
not see the water very often on the top of the surface of 
the ground, it permeates the ground so close to the surface 
that the corn will not mature. That is the land that Mr. 
Charley had. 


1866 I know that Mr. Charley got about 45 bushels of corn 
to the acre last year. He had about 80 acres altogether. 
I don’t know how much corn he raised. 


During the years since 1900, on the land south of the 

1867 C. B. and Q. with the exception of two years there has 

been a partial crop raised. The land both north and 

1868 south of the railroad since 1900, was farmed by a man 

named Schepp, who worked it two seasons, and Mr. Char- 

ley. I always understood there was 90 acres in there. 

1869 I do not know that it 1s somewhere between 75 and 80 
acres in the two tracts. 


Thirty acres on the north is high land and on the south 

side there is 20 acres of land which stands high. That I 

consider good land, the balance of it is low. I think the 

land might possibly have been worth $125 per acre before 

1870 1900. I don’t own any real estate, never bought any or 
sold any. 


I know of some land being sold similar in character in 
that vicinity. A man named Evans from La Salle sold 


do4 


it to a lady named Vesper. I cannot tell just how long 
ago it was or just how much was sold. Possibly would be 
1871 about a 38-acre piece. Sold in February, 1902. It isa 
little lower than this land, no buildings on it. I don’t 
know what was paid for it. I have heard it was $76 an 
acre, That was two years after the Sanitary District 
1872 was opened. I never thought of that sale in fixing the 
value of this land at $100. My statement as to what it 
was worth was based upon the products you could get 
on there from the amount that would be required on your 
part to produce certain results; in other words a corn 
raising proposition. I think it could be used profitably in 
that way so as to make a return on that amount of money. 


I don’t know of any land in all La Salle County befors 
1900, selling for $100, unimproved without buildings. 
From information I have I guess it is true that land had 
been generally around $50 to $75, until the next year or 
two when it commenced to advance, and that $100 was 
considered a very high value for even the best of La Salle 
County land in that vicinity at that time. 


I have worked in the coal mine under this land 33 years; 
worked in the third vein; it was three feet six inches 
thick, 440 feet below the surface. There is a middle vein 
on the premises 44 feet thick located 160 feet higher up 
than the third vein. 


1874 Among coal miners it is figured that there is about 1,000 
tons of coal for every foot of thickness in a vein in an 
acre. ‘There would be about 7,000 tons of coal in each 
of these acres of ground. I considered the land as a coal 

1875 proposition to mine coal in there. I understand that in 
the fee simple ownership of land is included everything 
as they say from the heavens above to the center of the 
earth. This coal is down there all right. That land with 
7,000 tons of coal in each and every acre of it as a coal 


300 


mining proposition in 1900, would have a considerable 

value. I think that the value of the coal, taking into con- | 

sideration the value of the coal now, that the value of the 

surface, taking the land in its entirety as a coal mining 

proposition, would be worth $75 to $100 an acre at that 
1876 time. 


1877 I would say that the extreme difference of elevation 
in this land is about six feet between the highest and 
lowest. 


I have known the Illinois River a great many years. The 

1878 water is not at its lowest stage today. The Vermillion 

and Illinois stand on substantially the same level. The 
Vermillion is within 300 yards of the Lllinois River. 


1879 There is from two to six feet of water in the Vermillion. 
Previous to the drainage it used to be in the summer, it 
was almost dry land. The surface of the country about 
the Vermillion has been changed by stripping off the tim- 
ber, generally speaking, all over the state. There has 
been a great change in the country, all over the country, 
by the use of tile draining. The water that used to stay 
in the land is carried off in the tile drain or run off in the 
tile drain to the stream. 


1880 I do not know that streams entirely disconnected with 
the Illinois River, by reason of the stripping off of that 
timber and by the use of the tile system, stand higher 
the year around now. My impression is not otherwise 
but I don’t know. I don’t have any information on the 
subject. As I say, we have sometimes from three to as 
much as seven feet, but seven feet is unusual. We have 
three and four feet of water in the Vermillion in the sum- 
mer time, in the dry time, and as I said by comparison 
before we had almost no water in it previous to that time. 

' 1881 We have quite an amount going down sometimes but no 

great torrent or anything like that. I have not seen that 


306 


overflowed from the Vermillion except back water from 
the Illinois. The two rivers do not necessarily rise and 
fall together. J saw the Illinois River on a stand and I 
saw the Vermillion flow strong and float the ice clean over 
to Rockwell when the Illinois River was perfectly solid 
then. I account for that by the rainfall in the water shed 
1882 of the Vermillion that did not apply to the Illinois River. 


This land would be possibly five or six feet above the 
Illinois River at its very lowest stage, or the Vermillion. 
The Vermillion is not a very deep stream. It is 280 feet 
wide when flowing very full. 


From the number 1 mine there is a waste bank on this 
piece of land. They are dumping rock down on that piece 
of land. The dump is located pretty near over to the 
bluff, the Central track; possibly it is 75 feet high. It 
would cover maybe two acres possibly, pretty near, at 
this time. The fire clay dissolves and then spreads out a 
little distance and washes out over the land from this 
dump. It is possibly carried out 20 feet. I never saw it 
more than that. There are great rocks roll down. The 
clay dissolves. They are constantly adding to this dump, 
and it is growing all the time. That comes out from all 
over the mines. This dump stands on the 90-acre piece 
I spoke about, stands close to the bluff not far from the 
bloff. 


1884-5 Deposition or HE. L. Cootry, a witness for the plaintiff, 
being sworn, testifies as follows: 


Direct Examination by Mr. O’Donnell. 


1886 My name is EH. L. Cooley. I am a civil engineer em- 
ployed by the Sanitary District of Chicago as one of its 
assistant engineers; have been in its employ continuously 
since May, 1894. 


307 


Upon January 17, 1900, with two or three assistants, I 
personally attended to the lowering of the Bear Trap Dam 
at Lockport. To some extent since that time I have been 
performing duties as assistant engineer in regard to the 
flow of the water over the dam at Lockport. 


1887 <A record has been kept of the flow of the water over 
the dam or through the gates. The flow has been esti- 
mated by the application of a certain formulae I have se- 
lected for that purpose. Before and after the 17th of 

1889 January, 1900, I personally operated the Bear Trap 
Dam and the machinery controlling the same. I designed 

1890 a considerable portion and got it into condition to oper- 
ate at the finish. The act performed by the person or 
persons in charge for the purpose of raising or lowering 
the dam is they simply turn a wheel for both purposes; 
one way in one case and the other way in the other. The 
power that operates the dam is practically the head water 
from the channel. The gates are raised or lowered north 

1891 of the dam by hand gears. There are counter weights 

1892 on these gates. The gates move up and down like a 
window frame and there is a ratchet lever at each end 
usually operated by one man at each end. 


The basin which lies immediately back of the Bear Trap 
Dam is called the tail-race, sometimes called the windage 
basin. At its extremity it is about 500 feet wide and 35.1 
feet deep. It only preserves the width of 500 feet for a 
little ways north. The regular channel terminates in the 
windage basin. Immediately under the Bear Trap Dam 

1893 there is a chamber into which the water can be admitted 
or discharged. Water can be admitted from the canal and 
discharged into the tail-race. The tail-race runs south 
from the Bear Trap Dam for a short distance; it runs 
parallel with the river channel from the Bear Trap Dam. 
They join about six or eight hundred feet below the dam. 


308 


The Bear Trap Dam rests on a concrete structure. 
From the bottom of the windage basin to the top of this 
1894 concrete structure it is about 18 feet. The surface of 
the water when the Bear Trap Dam is closed and the 
windage basin is full varies within the level of the water 
1895 in Lake Michigan, varies several feet. The highest ele- 
vation I cannot give without a point of reference being 
given to me.. The elevation of the masonry below the dam 
is minus 13, Chicago city datum, and the bottom is minus 
30, also Chicago city datum. With the same point of ref- 
1896 erence the height of the water when it is at its highest 
in the windage basin depends on the level of Lake Mich- 
igan. I don’t distinctly recall the highest I ever observed 
it. I have known it to be above Chicago city datum on 
rare occasions. By Chicago city datum I mean what hap- 
pened to coincide with the low water of 1847 as indicated 

on the Milwaukee gauge. 


Since January 17, 1900, there has been no dam between 
the windage basin and Lake Michigan where the river 
empties into the Chicago. 


1897 Immediately west of the Bear Trap Dam and beneath 
the dam there was an excavation made in the course of 
the Sanitary District work. The excavation is the so- 
ealled tail-race. They dug two or three feet through the 
rock to a width of about 400 or 500 feet. The distance 
from the Bear Trap Dam south to the bridge known as 
the Ninth street bridge, west of the City of Lockport, is 
about 1,700 feet, as I remember. I think it was about one 
mile from the Ninth street bridge down to the Sixteenth 
street bridge across the channel. 

My recollection is not distinct as to the width of the 
main tail-race from the Bear Trap Dam to the Sixteenth 
street bridge. I think it was about 500 feet. I don’t 
think it was 600 feet. I don’t know how many bridges 


309 


there are over the channel at Sixteenth street. From the 
1898 controlling works to Sixteenth street there was a levee 
constructed by the defendant on the east bank of the 
channel. It was constructed before the water was let 
1899 in. I cannot state the height of the levee. It is com- 
posed mostly of earth; there may be some rock in it, I 
eouldn’t testify as to that fact. 


The Desplaines River enters the main tail-race six or 

eight hundred feet below the Bear Trap Dam on the west 

1900 side of the tail-race. [I am only familiar in a general 

way with the river diversion channel through the town- 
ships of Lockport, DuPage and Lemont. 


Since January 17, 1900, the controlling works have 
been operated under the direction of the chief engineer. 
Incidentally at times, I have had something to do with it 
under his direction. I had nothing to do with it in con- 

1901 nection with the quantity of the flow. I sometimes 
transmitted orders concerning the flow. The transmission 
of orders is not limited to one man. 

The water was turned in about 11:15 a. mM. on January 

1902 17, 1900. About a depth of two feet went over the crest 
of the dam at that time. 

The Courr: We will suspend here. 

Whereupon the further hearing of the above entitled 


matter was adjourned to nine o’clock Wednesday, Novem- 
ber 20, 1912. 


1903 


360 


November 20, 1912, 9:00 a. m. 


Court met pursuant to adjournment. 


W. H. Irwin, a witness for the plaintiff, recalled for 
further examination, testifies as follows: 


Cross-Exammation continued by Mr. Chiperfield. 


Q. I will ask you to look at a copy, this is not the 
original, bear in mind, it is a tracing which we have made 
of your exhibit which is numbered ‘‘13’’ in this case. 
Just glance at it a minute and satisfy yourself that it is a 
substantial copy of yours. A. As near as I can tell 
without comparing it is. 

Q. Now, you gave the total number of acres in your 
computation as you gave them to us, you noted the tract 
which lies north and east of the Illinois River in section 
21, as 69.24 acres if I remember correctly? A. Yes, sir. 

Q. Iam informed by you that you wish to change that 
total as there was an error in transcribing? A. There 
was 09.24 acres, the figures show as they are on the map. 

Q. The figures are all right on the map, but in the 


1904 computation there was an error of ten acres? A. Yes. 


Q. Now in the tract which lies to the east of the Il- 
nois Central Railroad, being the northeast quarter of the 
southeast quarter and the northwest quarter of the south- 
west quarter and 44 acres on the north side of the south 
half of the southwest quarter, all in Section 23, there is 
more than that included on your plat, and in the totals 
which you gave, being 39.62 acres, being the northwest 
quarter of the southeast quarter and 44.88 acres of Sec- 
tion 23, there is more than that included in the total acre- 
age than the description which I have given, being the 
north half of Section 23, and the 44 acres off the north 
end of the south half, is there not? <A. I believe the 


O61 


north half of the southeast quarter of Section 23, 44 acres, 
yes, there is. 

Q. All I want you to do is to deduct from those totals 
the amounts that should come out of the acreage, as being 
not included in the declaration in this case. A. I have 
made a computation of that. 

Q. All right, sir, you may give it,if you please. A. I 
prefer to give it in this way. 

Q. Any way you want. A. In the northeast quarter 

1905 of the southeast quarter of section 23, the acreage owned 
by the Carbon Coal Company— 

Q. Please leave out the word ‘‘owned.’’ A. The net 
acreage claimed by the Carbon Coal Company— 

Q. Yes. A. —is 34.36 acres. In the northwest quar- 
ter of the southeast quarter the net acreage claimed by 
the Carbon Coal Company is 38.38 acres, north 44 acres of 
the south half of the southeast quarter, 4.5 acres. 

(). And have you got the whole thing figured up? A. 
No, but I can do it for you in a moment. 77.24 acres. 
These areas are exclusive of railroad rights-of-way. 


Deposition of E. L. Coonny, a witness recalled for the 
plaintiff, further testified as follows: 


Direct Examination Continued by Mr. Butters. 


1906 We got the gauges on the dam about two weeks after 
that. The purpose of the gauges was so that we would 
know when we moved the dam what the depth was over the 
dam. When the water stands at a depth of two feet over 
the dam the number of cubie feet was about 90,000 cubie 
feet. I carry the formulae that we use in my mind. We 

1907 get daily reports of those gauge readings. They are in 
the files of the office of the Sanitary District of Chicago. 

1908 They are not in my personal possession; they are in the 


362 


files of the office. I have no authority to produce them 
individually. Like all our records, they are in charge of 
the chief engineer, Isham Randolph. I have not been for- 
bidden to produce them by any one. I have access to 
them when I want to consult them. I usually go where 
they are filed and look at them. I have access to the files. 
I cannot produce the records without the consent of the 
1909 chief engineer. They are not directly in my custody. 
| They are in the custody of a man who is not under my 
direction. The man who used to have charge of the room 
is gone now. I suppose the record clerk would have 
charge of those records now. He is employed under the 
direction of the chief engineer. His name is William 
Trinkaus. 


If I desire from day to day to know the quantity of 
water that flows over the dam at any day during the past 
five years, I have access to the records; whenever I wish 
to consult the records I go there and do it. I usually 
assume to go there without permission from any one when 
I have any business so to do. JI am a sub-assistant en- 
oineer. 


1910 I have visited the controlling works frequently during 
the last five years; sometimes once a day and laterally 
once a month at least. I was there every day when some 
work was going on as construction or repairs that in- 
volved the operation of the controlling works. During 
my various visits there I saw the dam. I saw the gates 

1911 in operation, I mean raised frequently. The gates are 
not used very often, only incidentally for the purpose of 

1912 passing water into the tail-race. I think I have seen 
four open about one foot each. There are seven gates. 
The seven gates are in condition to be opened if necessary. 


I could not very well answer the question as to the 
greatest height of water I have seen passing over the 


363 


dam. Normally I would say four feet. There may have been 

1913 times when there has been temporarily a much greater 
flow. I have known the dam to be put down flat for some 
purpose for a few minutes. Aside from the times when 
I say it is put down flat, the flow varies according to the 
orders received from the chief engineer. JI think the 
highest number of feet is four feet, that is four feet of 

1914 water. With four feet of water there would be passing 
over the dam, without stopping to figure it a little less 
than 300,000 cubic feet. The formulae serves our purpose, 
we regard 1t as competent. | 


1915 We have in the office a formulae. It is in a book which 
I can bring. There used to be a little paper with that 
formulae at the head. I don’t know that I have got a 
1916 copy of it. I think the last copy I BANG to Mr. Blakeslee. 
(Witness produced book.) 


There were four sets of measurements made by differ- 
ent parties at various times which showed our formulae 
to be fairly satisfactory. The width of the opening in 

1917 which the Bear Trap Dam rests is 160 feet nominally. 
I think it is a couple of inches more. The elevation of 
the main tail-race beneath the dam where the water flows 
over the dam is minus 15. The main tail-race is minus 16. 

1918 The bottom of the windage basin is minus 30. Ata 
distance of 75 feet from the foot of the dam, out 
in the bottom of the tail-race, the elevation is minus 16, 
a foot more than just below the dam. The bottom of the 
tail-race was made of a uniform elevation. It is not so 
now. It is considerably higher, about 14 feet higher than 
the windage basin. 

In case where there is no flow when the water is at its 

1919 normal stage and the dam is raised, the water should 
then be at the level of Lake Michigan. The bottom of the 
tail-race always remains the same below the surface of 


364 


the water. The surface of the water varies all the way 
from two or three feet, something like that pending upon 
the condition of the flow. At its highest stage it never 

1920 gets very high because it goes swift there. In the neigh- 
borhood of three or four feet is about as deep as it gets. 
I mean the depth of the water in the tail-race. I should 
say four feet of water. I say that reservedly because I 
have no measurement. Itis simply my impression. There 
is no occasion to measure the depth of the water at that 
point. 

1921 One winter I thought I saw on one of my visits five feet 
going over the dam aside from the time when the dam 
was laid down flat. That was the winter that Mr. Jones 
was president. I don’t remember the year. When we had 
about five feet there would be 350,000 cubic feet per 

1922 minute over the dam. That flow continued for a number 
of days during the winter; started in about Christmas 
time and kept up for several days during the winter. 
Might have been thirty or forty days, might have been 
two months. In some cases, on occasions of heavy rain- 
falls and floods in the valley of the Desplaines River in 
the vicinity of Chicago, there has been an increase of flow 
over the dam for a few hours to prevent the water going 
out into the lake. It lowered the water so that the water 

1923 ran that way instead of running out into the lake. 


When the Bear Trap Dam is in operation so as to carry 
anywhere from 250,000 to 350,000 cubic feet per minute, 
there is a current in the Chicago River and it starts up at 
the head of the so-called break-water where the inner 
harbor terminates. The break-water is practically dug 

-1924 out of the shore of the lake. 

The earth section of the channel ceases and the rock 
section of the channel commences at Willow Springs. Be- 
tween Willow Springs and Robey street the width of the 


365 


earth section top measurement is about 3800 feet, but 
varies with the stage of the canal. Probably about 340 

1925 feet when the height of the ground is plus 10 and the 
depth of the channel is minus 25. The slope of the bank 
is about one on two and the bottom width is approximately 
200 feet. It varies some with the distance. 


The greatest depth of the greatest depth of the rock 
channel between Willow Springs and Lockport, beneath 
or under the surface of the ground is probably thirty-five 
feet. No change in the design of the channel or the size 
of the channel between its connection with the Chicago 
River and the Bear Trap Dam as to width or depth since 

1927 1900. The main channel is substantially the same. There 
has been no change in the openings or capacity of flow of 
either the Bear Trap Dam or the gates since January 17, 
1900, except the completion of some little details. 


Gauge readings are taken every half hour. The Chi- 
1928-9 cago River is usually able to take care of any rains or 
floods due to the rain coming out of the north branch, 
without any change in the flow. I say there have been a 
number of times since the channel was opened when the 
water did not go out into the lake from the north branch. 


1931 Gus Turan, a witness for the plaintiff, being sworn, 
testifies as follows: 


Direct Examination by Mr. O’Conor. 


1932 My name is Gus Thran. I have resided in Peru since 
1853. Have been digging coal at Cahill’s. I live in the 
southwestern part of Peru about four blocks above the 
Rock Island bridge and west of the [llinois River bridge. 
It is higher up on the bluff. 


Am acquainted with the river from 1890. I have seen 
1933 it most every summer every week, once or twice, when I 


366 


would be fishing. I went fishing often during the summer 
months. I have fished from the river bridge down. 


Prior to 1900, I was acquainted with the river. I would 
1934 be steamboating every year from 1872 in the spring of 
the year for a few months. I have done no steamboating 
1935 since 1890. The river has been higher since the Sanitary 
District water was turned in. I know by the piles which 
I used to tie my skiff to. Some of them would be on dry 
land before, while now they are three or four feet under 
water. The piles are located nearly one and a half miles 
below the Illinois River bridge at Peru. I think there 
would be a difference in the water there during low water. 
1936 The difference since then in the summer has been about 
four or five feet. The season I refer to now when they 
1937 are under water is low water. 


Cross-Examination by Mr. Chiperfield. 


Have done no steamboating since 1880. JI was a deck 

1938 hand on a steamboat called the Beaver and the Joe 

Fleming. One year on one and another year on the 

1939 other. They’ were towing grain barges and ice barges. 

The steamer, that I speak of that the piles were used 

for the protection of would be about 200 feet long and 

1940 belonged to the Bowers’. They have not been in busi- 
ness since 1880. It was put in there in the seventies. 


1941 The piles were 30 or 40 feet out in the stream and 
closed up that much of the stream. They did not stand 
very high at the shore end but they would go higher out 
further. There are some standing 10 feet out of water 
today. At the shore they would stand four to seven 
feet. I guess there must have been 40 or 50 piles. Be- 
fore the drainage water came in they were against the 
shore. 


I know there was a decided change in the Illinois River 


367 


when the Henry dam was closed in 1879. The piles were 

1942 built in the seventies, but I couldn’t state when. The 
time they were built they were four or five feet above 
low water, on the inside of them. There was some 20 

1943 feet high before 1890. After 1900, they were four or 

1944 five feet out of water. 

1945-7 @. You can wait after all of these questions I am 
about to ask to see if there is an objection before you 
make reply. Was the low water of the Illinois River— 
do you know what was the date of the closing of the 
Henry dam at Henry, Illinois? A. I couldn’t tell you 

1948 that. I know the Henry dam was in before 1879. 

Mr. O’Conor: Your Honor, I don’t want any con- 
fusion in the record on this witness. My idea as to the 
ground covered in the testimony I thought was clear, 
but apparently counsel on the other side don’t view it in 
the same way I do. 

Mr. Cuiprrrietp: I don’t believe we disagree about 
the date, Mr, O’Conor. 

Mr. O’Conor: You mean about the closing of the 
Henry dam. 

Mr. CurperFrreLp: Well, his idea is different from 
mine about that,,but I believe I won’t extend this exam- 
ination, as conducted by you, any further than you in- 
tended to extend it. I am not putting it on that ground. 

Q. Do you know what was the date of the closing 
of the Henry dam? A. No, sir. 

Q. Now, I will ask you if the low water of the Illinois 
River was changed and altered after the closing of the 
Henry dam? <A. Well, the Henry dam raised the river 
some, yes. 

Q. How much? A. Well, I couldn’t tell you that. 

Q. I will ask you if it is not true the closing of 
the Henry dam raised the level of the Illinois River at 

1949 low water four or five feet? A. It raised it some, but I 
don’t know how much. 


368 


(). Now, if it is true, that when these piles were con- 
structed in 1870, that the low water of the Illinois River 
was different than it was after the construction of the 
Henry dam, and if it was true that these piles only stood 
out of water four or five feet at the shore line at the 
time they were constructed, how much did the raising 
of the low water on the river affect them? A. Oh, you 
have got me. I don’t know what you are talking about. 

Q. I am sorry and I will make myself just as plain 
as I know how. A. You say the Henry dam was put in 
in 1879? 

@. That is what I say, yes sir. A. Well, the Henry 
dam was put in before 1879. 

Q. TI am not going to argue with you. It is just an- 
other case of where two men think differently about some- 
thing and it is for somebody else to decide. JI am not 
going to argue with you about that. 

Mr. O’Conor: I object to that, arguing with the wit- 
ness. 


Mr. CuHrIperFIELD: J am not arguing. There is a ques- 
tion pending and he made a statement instead of answer- 
ing the question. Read that question. 

(Question read.) 

1950 @. When the low water was changed where did it 
then stand on these piles? A. Well, the low water was 
changed before 1879. 

Q. What? A. Well, the low water was changed be- 
fore 1879, before the Henry dam. 


I didn’t notice any of the piles before the Henry dam 
raise came in. I don’t know when the Henry dam was 
put in. [ could not answer how much the raise of the 
low water affected the distances these piles stood out of 

1951 the water. In 1890 at low water these piles stood out 
four or five feet. I could not tell you whether it was just 
the same distance as when they were constructed. At 


369 


low water mark now they are four or five feet under 
water. 


(). So that the river has been raised, according to 
your contention, from eight to ten feet? A. No, it has 
just raised four or five feet from 1890. That is what I am 
saying. 

1952 @. ‘Then low water would be four or five feet below 
the top of these piles before 1890. That is true, isn’t 
it? A. Yes; sir, four or five feet. 

@. Now, follow me. Now since 1890, you say the low 
water is four or five feet on top of these piles, above the 
top of these piles? A. No, I say the piles are level with 
the top of the water now. I say it raised four or five 
feet since 1890. 


1953 I last investigated the condition of these pilings last 
summer. They were just level with the water. They are 
half a mile west from the Peru bridge down stream. 

1954 I base my conclusion that the water is higher just 
on those piles, that is my sole source of knowledge. The 

1955 ice has never taken any of them away nor broken them 
off, but they are bent over. When they are bent over 
that would put them further under water. I don’t know 
how much they have been bent, how much shorter they 
would be I don’t know. The ones I say that were under 

1956 water were never bent. It is the only lot of piles run- 
ning out into the river at that point. I have not seen 
the piles entirely under water at high water. 


I think the Illinois River rises from low water to high 
water as much as ten feet. I have seen water in Water 
street, but it has been filled up since. Some of the base- 

1957 ments on Water street have had a couple of feet of 
cinders put in since that time. It is in Peter DeGroot’s 

1958 house. DeGroot was not a steamboat man. The filling 
of the cellar with cinders had nothing to do with raising 
the water and the level of the river. 


370 


Wittiam Jackson, a witness for the plaintiff, being 
sworn, testifies as follows: 


Direct Haamination by Mr. O’Conor. 


My name is William Jackson. I reside at Peru between 
the bridges. I will be 60 years old next April. I have 
lived in Peru since 1890. Farmed the bottom lands 

1960 ten years ago. Farmed ten acres of Waugh’s land. It 
was in 1901. Although there was a flood that year I got 
1961 in in the spring about May 38rd. The ground was in 
fine condition. Husked a little late in the fall, but the 
corn got ripe. In the neighborhood of 100 bushels to the 
1962 acre. The ground was dry. Had good yellow corn. 
I hauled it home and sold some of it and fed some of it. 
1963 The year was a very dry year. I farmed some eight 
years ago, ten acres. ‘The last farming I done was in 
1964 1904. I got on the ground late in June. I could not get 
1965 on earlier, the water was too high. The corn was soft, 
1966 did not mature. Left it until the water commenced to 
rise and then husked it. Husked it all. It was a good 
1967 big crop but it didn’t get ripe; it was soft and milky. 
Probably 200 bushels were rotted. Picked the corn and 
took it home and sorted it. Picked out the softest and 
threw it to one side. That winter it was not very cold 
and in a month or two it commenced to heat and turn 
black. We sorted it again and threw the corn on the out- 
side of the erib. It lay there until towards spring when 
1968 we fed what we could and burned the rest for fuel. It 
made a fine fire, the finest in the world. 


In 1904, there was a good deal around there that was 
in crop. I guess probably there was two-thirds of it 
farmed that year. 


371 


Cross-Examination by Mr. Chiperfield. 


In the year 1901, I farmed a ten-acre piece of this 
land. It was the second year after the Sanitary District 
was opened. Put in a nice crop and I got ripe corn and 
took off a good yield; something like 60 to 70 bushels to 

1970 the acre. I paid $5.00 an acre rent to Mr. Waugh. This 
was the second year after the Sanitary District was 
1971 opened. I don’t recall how it was in 1900. 


Seven or eight years ago I had ten acres more. The 
ten acres I farmed in 1901, was right by the slough, east 
of the slough bridge higher than the land I farmed in 
1904. JT couldn’t tell how much. I suppose from four to 
five feet higher. 1904, did not get a crop in until late. 

1972 The land was wet but not covered with water. I don’t 

1973 know just what time it was, after the 15th of June, how- 
ever. I planted the land right near the river, right on 
the north end. I was cut off from the river by some tim- 

1974 ber. My land was on top of the bank, I should say, two 
or three feet above the level of the river at that time. We 
got a crop in but it was soft. The land not in a satis- 
factory condition, but the crop came nicely. I had a good 
crop. The corn did not get ripe on account of it being 
too late. 


Never have had any experience with silos. The corn 

was in the milk. JT raised seven or eight hundred bush- 

1975 els on that tract. By rights it was not fit to feed, but 

it was all we had, so we fed it. Some of it was unfit for 
1976 feed, killed the chickens after we left it stand. 


Frequently before corn ripens we cut the corn and 
feed it to the stock, horses and cattle and when it is still 
soft you feed it. We could not feed it quick enough to 

1977 keep it from spoiling. If we had cut it and shocked it 
you could leave it in the shock and it will fill out, it will 
mature, but it won’t when the frost kills it on the stalk. 


ot2 


We eut corn and shock it. It would stay green and nice 
ordinarily until spring, but not in the erib. 


I burned over 200 bushels of it. I picked some and 

sold it when it froze, got about 15 or 16 cents a bushel. 

1978 I sold it around to the Polish people. Worked it off 

on them. I fed that one winter the best I could pick out. 

I did not measure it, probably in the neighborhood of 
two-thirds of it to the stock and horses. 


The year 1904 was a very wet year. In 1907 and ’09, 

1979 the water did not come up on the land after I planted it. 
Paid $5.00 an acre to the plaintiff that year. The crop 
was not destroyed by water, that was the contract. 

I testified in the Brannan case. 

Q. Do you know whether or not this question was 
asked vou, ‘‘Have you ever done any other farming be- 
sides working that land,’’ to which you replied, ‘‘ Yes, 
sir? 72 A, oes, sein, did! 

(). ‘‘T farmed twelve years on Mr. Duncan’s land just 
south of La Salle on the bottom road farm land, for four 
years’? A. Yes, sir. 

1980 (). Then was this question asked you, ‘‘Did you raise 
corn there,’’ to which you replied, ‘‘T did and it was not 
worth anything and I quit it’’? A. Yes, sir, the price 
was low. 

The price was no good, 16 or 17 cents a bushel. That 
was before 1900, about 17 years ago. 


1981 Grorcr .W. Braun, a witness for the plaintiff, being 
sworn, testifies as follows: 


Direct Examination by Mr. O’Conor. 


My name is George W. Braun. I have lived at Cedar 
Point since 1853. ‘Was born there. After 1890, farmed 
a part of Section 21, in 1894. Farmed none of that land 


dtd 


1982 later. I farmed and had control of all that part of Sec- 
tion 21, south of the Illinois River. I farmed it from 1890 
until 1894; did not have it after that. In 1890 we had an 
early spring, went in there and raised corn on all of it 

19&38 which was not timber. I cannot say how much was in 
eorn, but something like 320 or 350 acres. The corn was 

1984 good. Went from 50 to 70 bushels per acre, some of it. 
There was a difference in the average. It was all plant- 
ed to corn that was tillable. Got in about the middle of 
May and had a good crop running about 70 bushels to 
the acre. 


1985 After husking those two years they turned the stock 
into the corn fields. The stock was_ practically 
1986 there during the winter until along in February. 


In the year 1892 high water and no crop. In 1893 we 
had corn on this land. Got in in May and the crop ma- 
1987 tured and got a crop about seventy bushels. 


I lived there in the spring of 1894 but did not farm 

that year. Sam Waugh farmed it. [I moved from there 
1988 to Cedar Point where I now live. The buildings that 
were used in farming this land there were on Section 28. 


1989 I was in the vicinity of the land between 1894 and 
1902. Pretty hard to tell how. often I saw them. The 
1990 lands were cropped during those years always to corn 
1991 down to 1901. They raised good corn crops. I was 
actually on the land a part of the time; not until the 
fall, along in October. Never did any husking there. 
1992 The corn stood pretty fair in the field. After the corn 
1993 was husked they pastured it. 

I am acquainted in a general way with the river con- 
ditions of the Illinois from 1890, down to 1901, and since 
1902, up to the present time. There was a difference in 
the years. 


1994 Take it in 1908 and 1904, the low water stage was not 


374 


as high then as now. In 1901, we hardly noticed any 

water. I noticed there was dirty water coming down 

there and quite a sudden rise all at once but it was not 

so very much and after that from year to year it was ris- 

ing, it was increasing. In the last five years it has come 
1996 higher all the time. 


The artificial construction which assists me in deter- 
mining the condition of the level of the Illinois River 
from 1890 down to say 1901, was a tile we put in in 1888. 
We tiled some of the low land that I own and we extended 
a big iron tube out to the bank where the water was to 
run into the Llinois River. The bottom end of that tile 
was put on a stone foundation, cement or sand. ‘Three 
and one-half feet above the low water mark and at the 
present time that tile, being a twelve inch flue, is under 

1997 water. This summer I went down to find the tile and 
{I found the location but could only find where it was, 
where the water was shooting out by putting my foot 
down and feeling the cold water. Last year it was cov- 
ered. I did not measure it, it was covered. It was in 

1998 water. In 1910, I never saw the top during that year. 
1902 was a wet year, big flood. Noticed changed in 
the flow of the river since 1902, both spring and fall. 
In the spring the water don’t go down like it used to, 

1999 holding the water up in its banks, which causes the land 
to be filled with water. It stood higher in the ground 
than it did in the river until the water in the river set- 
tled down and gave it a chance to drain away. It keeps 

2000 the land cold. 


The roots of the corn go down four or five feet to dry 
ground. If the ground is not at least four feet, if the 
corn hasn’t at least four feet of dry ground in which to 
go down it stops the growth; makes the ear grow smaller 
and smaller and it does not ripen in time to harvest. 


2001 Q. In the year 1900, in the month of January prior to 


379 


the turning in of the Sanitary water, were you familiar 
with the fair cash market value of this land in section 
21, and other lands similarly situated? A. Yes. 

Q. What in your opinion in the year 1900, in the month 
of January prior to the turning in of the water, was the 
fair cash market value of this land located in section 21, 
that you have been speaking of? 

Mr. CuiperFietp: Objected to as no proper founda- 
tion has been laid. 

Objection overruled. 
To which ruling of the court, the defendant by its 
counsel, then and there duly excepted. 

A. When I consider everything, I consider the land 
was worth at that time $150 an acre. 

(). Have you an opinion what the fair cash market 
value of that land was in the year 1900, in the month of 
January after the turning in of the Sanitary water, con- 
sidering the facts that you now know in relation to the 
flow of the Illinois River since that time? 

Mr. Curprrrierp: Object to it as no proper founda- 

2002 tion has been laid and asking the witness to take into 
consideration matters which may be known only to him- 
self and not disclosed by the evidence in this ease. 

Objection overruled. 
To which ruling of the court the defendant by its 
counsel, then and there duly excepted. 

A. That means I have got to take into consideration 
this water that is turned down into the river now. 

Mr. O’Conor: Yes, sir. 

A. Why it is worthless. 


2003 Cross-Examination by Mr. Chiperfield. 


IT am the owner of bottom lands and have a suit pend- 
ing at this time against the Sanitary District. I am not 
directly interested in the outcome of this suit. I suppose 


376 


my ease would have to take care of itself. I don’t think I 
am indirectly interested in the outcome of this suit. I 
2004 don’t think [ ought to care which way it is decided, but 
certainly [ would like to see them win. While I have 
been subpoenaed as a witness I have been volunteering 
my service and giving information, and have assisted 
in suggesting witnesses and have made myself generally 
pretty active. 
I have never been at Lockport or seen the controlling 
2005 works. I don’t know there is a Sanitary channel ex- 
eept:as I have read about it. I know nothing about it 
2006 of my own personal knowledge. 


I do not know that the water shed of the Lllinois River 
runs over into the State of Indiana or that it runs into 
the State of Wisconsin. I don’t know anything about 

2007 that. I don’t know anything about whether there are 
changes that affect those two portions of the country or 
change the conditions in the Illinois River. I don’t know 

2008 whether there have been drainage districts constructed 
within the last ten years that cut off the carrying capac- 
ity of this stream over 100,000 acres where the former 
bed of the stream used to be. I would not think these 

2009 things would have any effect on the amount of water in 
the river or the carrying capacity of the stream until 
I seen them. I simply take it for granted from what I 
have read that all of the increased water in the [Illinois 
tiver comes from the Sanitary District. 


2010 I don’t know whether the bottom of the river is rising 
or the bottom lands are rising. I think the carrying ca- 

2011 pacity of the river is decreased since 1900, because the 
low water stage is so much higher. When the low water 
stage was lower there was that much difference between 
the prior low water stage and the present low water 
stage, and that has been filled up. I mean the river is 
more full of water. 


ol7 


2012 I did not say the ground was soaked up and therefore 
that interfered with the flow of the Illmois River. I 
claim the ground is saturated from year to year and 
does not dry out like it used to. The water always seeks 
its level. When the water comes out over the banks it 
is like the country used to be when the water would fill 
the ponds and would not get away until the air and _ 
natural condition would evaporate that water. ‘This is 
the case right here in the bottom lands in some cases 
where the surrounding banks are higher and the water 

2013 can’t get out of there. The water has been four or five 
feet higher. It depends upon the case of whether the 
water runs back under the land a mile or two. The soil 

2014-15 in the bottoms is entirely different than it is in the 
bluffs. Can’t tell you a point where I can go back a 
mile from the [Illinois River and find a river of water 

2016-18 under section 21. I did not say that under the en- 
tire section there stands a dead body of water four or 
five feet higher. I said it was higher. 


2019 I got the map I show you from the plaintiff. I think 

2020 it was made in 1905. The pond I show you used to be 
a very big pond before 1890; it contains now about twelve 
acres. It used to be there before 1890, it was there every 
year. The pond does not appear upon the survey that 

2021 has been introduced in evidence. It leaves out a pond 
of some twelve or thirteen acres. It was never tillable 
in any year that I ever knew this land, nor were there 
any crops raised on it. I have not been to the pond for 

2022 several years. I don’t know how deep it was then. I 
can’t tell you how deep it was because the depth varied. 

2023 It was from six inches to something like two feet to the 
best of my recollection. The pond is from eighty to 

2024 sixty rods long. It source of supply is the water from 
the bluffs and the river. When the river is lower than 
the pond the river does not feed the pond. 


318 


2025 I can point out the pond on the plat that has been in- 
troduced in evidence. It is right in there. 


2026 I know the Illinois River has a current swifter now 
than before 1900. I don’t know how much, maybe twice. 
2027 It runs a whole lot faster. 


In giving my notion as to the value of the land, I took 
into consideration all I knew about the land, the values 
for different purposes for which it was adapted and the 
rental and everything. I think it is worthless now. I 
would not consider it worth anything after that although 
they had some use of it. It could not be sold to anybody 
that knew anything about the conditions. I don’t know 
of anyone that would buy it. JI don’t know that you 

2028 would have to pay somebody to take the land off your 
hands. 


2029 Mr. John Martins’ land in Eden Township, section 8, 
sold for as much as $100 an acre before January, 1900. 
Martins bought that of the Whittaker estate for $100 an 
acre without the coal. I don’t know that that land was 
bought in 1903. The land was improved. There were 
some buildings on it, eighty acres. 

2030 I don’t think I am influenced in my idea of values be- 
fore and after 1900, by the fact that I have got some land 
lying right next to this. I don’t think it influences me 
a particle. 

I understand that this land is all underlaid with a 

2031 valuable vein of coal. I don’t know how much rental I 
paid for the land the year I leased it. JI don’t know 

2032 what I paid for the land in 1890, whether it was $1 an 

9033 acre or not. In 1890 it was $500 cash for the land that 
year. For the four years that we occupied the land be- 
sides some improvements that were done every year, we 
kept adding timber ground, the timber was grubbed out, 
cleaned out and it made farming land of it. I mean we 


379 


2034 paid $500 each year. The arrangement was not $1 per 
acre. | 

The timber we cut we hauled up to the Carbon Coal 
Company and they paid us for hauling it up there and 
paid for some of the chopping, but they did not pay for 
grubbing the stumps. The props that we made out, of it 

2035 we sold to the company. 

There were between 300 and 370 acres that we had 

from the company. I do not know that the plat shows 
2036 over 400 acres. It may show it but I didn’t know it to 
be there. 

East of the slough the land belonged to the Braun 
estate. In 1894, I guess I was the owner then. When 

2037 we first went there we figured that at only about 260 
acres that we had in cultivation. While we were there 
we cleaned up about sixty acres, making about 320. 

2038 There was about fifty acres west of the land covered by 
pond I spoke of and the timber. 

When I say that the land is worthless at the present 
time I do not see that it could be used for any other 
purpose only agriculture purposes. 

I think that this field of coal underlying this land 
could not be used by the plaintiff in this case. I don’t 
think they are claiming any damages to the coal. I know 
the La Salle County Carbon Coal Company is organized 
for the purpose of mining coal. I know they are in the 

2039 coal business, and they have a couple of mines right at 
the edge of these lands. They have mines scattered all 
around here. 

Q. I am afraid the court will not let me enter into a 
legal discussion with you over the subject. J asked you 
the question if you did not know, if you wished to be 
fair in this case, that they gathered this land together 
for the purpose of mining coal. 

Objection by plaintiff; objection sustained; to which 


380 


ruling of the court the defendant by its counsel 
then and there duly excepted. 


2040 Mr. Curperrretp: When this witness volunteers a — 
statement to the effect that the ownership of the surface 
was not necessary for the ownership of the coal, isn’t 
it a fair question then to follow to ask him if he does not 
know, if he wishes to be fair about the matter, that this 
land was gathered together for the purpose of coal min- 
ing operations, I want to show the fact. 

‘he Court: I think I will sustain the objection to that 
question. ; 

To which ruling of the court, the defendant by its 
counsel, then and there duly excepted. 

Mr. CuiperriEtp: It is to the entire question if your 
Honor please? 

The Court: Yes. 

Mr. CuHiperrieLpD: Q. Don’t you know that the La 

2041 Salle County Carbon Coal Company, the plaintiff in 
this ease has gathered this land together for the purpose 
of conducting coal mining operations and of removing 
coal from the land? 

Objection by plaintiff; objection sustained; to which 
ruling of the court, the defendant by its counsel, 
then and there duly excepted. — 

2042. Mr. Cuiprerriztp: Q@. Did you take into consideration 
in your replies as to the values of those lands every legiti- 
mate and proper use of which this land was susceptible? . 

A. Only for agricultural purposes. 

Q. ‘Why did you exelude another use if you know of 
any that this land has in making your reply? A. Be- 
cause it is not affected by the drainage. 

(). If you were to sell these lands-you understand do 
you not, Mr. Braun, that you would sell the coal as well 
as the surface? A. Probably, might not, they don’t do 
it in general. 


381 


(). Don’t you understand if you convey fee simple title 
2043 to this land it conveys the coal and everything else con- 
nected with it? A. It is not necessary to do that. 
Q. I did not say it was necessary to do it. A. It is 
not customary. 
Mr. Cutperrietp: If your Honor please I want the 
record to show I am unable to elicit answers from this 
witness and I decline to cross-examine him any further. 


2044 Wrep A. Mupex, a witness called for the plaintiff, tes- 
tifies as follows: 


Direct Kxamination by Mr. O’Conor. 


My name is Fred A. Mudge. [I live three miles south 

of Peru. I am about forty-eight years old. I am a 
farmer. I never did anything else. J own some land; 
about 460 acres. In going to Peru from my home I drive 
across what is known as MceCormick’s slough; and drive 
2045 across the bridge over the Illinois River. I was ac- 
quainted with Mr. Waugh. I remember when he was farm- 

ing land west of the road; east of that road. I used to 

“vo down to Mr. Waugh’s place, from the year 1890 down 

to the year 1900 occasionally; probably down there once 

or twice or three times a year at his house; occasionally, 
2046 but not very often, would go on his land. ‘The land was 
used at that time altogether for corn. The year 1892 
was a wet year, upland and bottom land. Outside of 
1892 they had a corn crop on this land from the year 
1890 up to 1902. I won’t say they had a full crop every 
year but I know we used to speak about there was nine 
years without a failure on the bottoms; something un- 
usual. 1902 was a wet season also. I have not been upon 
that land very much since 1902. I can see it as I cross the 
slough bridge, look across and see the condition of the 
9047 land. I have not been on it this year, but I can see it 


382 


as I go over the bridge. All you can see there are the 
weeds across the bottoms. 

Q. Now, at any time in the year 1900, Mr. Mudge, 
prior to the turning in the Sanitary water into this 
valley, I will ask you whether or not you were acquainted 
with the fair cash market value of this land and of land 
similarly located in that vicinity, without stating what 
it is at this time, were you familiar with the fair cash 
market value? A. JI don’t know of any lands changing 
hands on the bottoms at that time; I was not—I could 
not say I was familiar with it, only I could judge what 
it would be by the crops that were raised there, con- 
sidering them with the same crops raised on the prairie 
farms. | 


2049 I would have an opinion as to what was the fair cash 


market value of this land in the year 1900, prior to the 
turning in of the Sanitary water into the valley. I think 


2050 1t was $100 an acre. 


2051 


2053 


(). Taking into consideration, Mr. Mudge, what you 
know now at the present time in relation to the flow of 
the Ulinois River, turning in of the water by the Sani- 
tary District of Chicago, what was the fair cash markete 
value of that land in the month of January, 1900, after 
the water was turned in? 

Objected to by defendant; objection overruled; de- 
fendant excepts. 

A. Well, if I was taking in consideration just now I 
could say what I thought it was worth just now. 

Q. Carrying conditions back to 1900 that you know 
now is the idea? 

Modification of question objected to; objection over- 
ruled; defendant excepts. 

A. I don’t consider it worth anything. 

Motion by defendant to strike answer; motion over- 
ruled; defendant excepts. 


383 


Cross-Examination by Mr. Chiperfield. 


In saying that this land was not worth anything I had 
it in mind as I can see it on my way down. I have not 
seen a crop on it for years. I cannot see that part where 
the crop is growing this year as I go to town. I have 

2054 not seen the crop this year. I am not answering as 
to the whole. J am speaking simply of the land I can see 
on my way to town. I tried to qualify my answer so 
it would not refer to all the land and was not allowed. 
I don’t say now that all of this section 21 is worth- 
less. The land that I see that is not in crop, I haven’t 
seen them in crop for several years. I am not speak- 
ing of the coal. JI am simply speaking of the surface 
of this land. I didn’t have coal in my mind at all in 
fixing values. The coal has, I suppose, a very consider- 

2056 able value. I am speaking simply of the surface. You 
can’t say that the land is worthless if the coal is there 
and considered, but I am simply taking it as a farming 
proposition. That is all I was asked about. Coal has 
a value. Coal always had a value in 1900 and since, 
certainly, and if the coal is included in the land, the land 

2057 cannot be considered worthless. I never knew much 
about bottom lands changing hands; not interested in 
bottom lands and never have been; never owned any; 
never knew much about it in that way; never knew any- 
thing about it changing hands; don’t know whether bot- 
tom lands similarly situated to section 21, in the years 
96, ’97, °98 and ’99, were exchanging hands at from $20 
to $30 an acre. 

(). Have you taken into consideration in your answer 
anything as to the market value, when you say it is worth 
about $100 an acre? A. I simply took into consideration, 
as I said before, what the land would produce. 

(). My question to you now is did you take into con- 


o84 


sideration the market value based on what it would sell 
for on the market? A. No, because I said I didn’t know 
anything about that part at all. I don’t know anything 
about that part. 
Q@. Well, when you were asked if you had an opinion 
as to the fair cash market value, you said you did. Did 
you have at that time any opinion as to the fair cash 
market value of this land? A. Well, I answered that 
2058 question there simply basing my opinion on what the 
farm land was worth on the prairie that produced about 
the same kind of crop this did. 
I based my answer solely upon its productiveness and 
did not attempt to express any opinion as to the real 
market value. That is all we take into consideration 
when we buy land for farming purposes. I considered 
nothing’ else. 
(). And did you then consider it simply and only for 
agricultural purposes? A. I never looked at it as a coal 
2059 mining proposition owned by this plaintiff. I don’t 
know what section this land is in. [ never looked it up. 
I ecouldn’t say how many acres my opinion applied to. 
I don’t know how much land is there that can be seen 
from the road. I haven’t any idea. I know I ean see 
quite a bit of land there that. has been in weeds for a 
good many years. I never paid enough attention to tell 
2060 how many acres were there but you can always see a 
long strip without anything in it and further back you 
ean see the corn. I cannot describe it by acres, nor about 
how much there is of it. I can’t tell how long or how 
2061 wide the strip is that I have in mind. There was cer- 
tain lands between the Peru road and MeCormick’s 
slough. I was speaking simply of the Coal Company’s 
2062 land. I think the Braun land is further on. I don’t in- 
clude as worthless the land where the corn is growing 
this year. Where there may be 12,000 bushels of corn 


389 


growing on the land there would be some value to that 
land, and I have not expressed my opinion as to what 
that would be. I remember of one transaction before 
1900 in La Salle County, where land was sold for as much 
as $100 an acre. It was right around 1902 it was sold for 

2063 $100. That was an eighty acre piece. You could put 
any kind of buildings on that land. If you were to build 
anything on this land in section 21 you would have to 
raise them up on account of the high water, I suppose. 
I have seen this land covered with many feet of water 
many times. I couldn’t say as to the depth; once or 
twice since 1892 it has been over the Peru road. 


2065 Witttam WryGanp, a witness called for the plaintiff, 
testified as follows: 


Direct Examination by Mr. O’Conor. 


My name is William Weygand. I live south of La 

Salle about a mile. I am forty years old. Been living 

in La Salle for the last eight years. At the present time 

I am working for W. J. Brannen, south of La Salle. I 
have been working for him three years the first of Mareh. 
2066 I do farm work most of the time for him; have been 
doing some farming for myself in the Peru bottoms. It 

is south from Peru; land south right across from the zinc 
works. It is the same land that was farmed by Sam 
Waugh. I was farming that land this year, 1912, for 
Brannen. It was pretty late when we got in this year. 
2067 It was later than April; about the month of June. | 
should say it was in the month of June when we finished 
planting this year. We got our farming implements on 

the land this year by loading them on a barge and we 
drove the horses through by hand. We loaded the barge 

at the La Salle bridge and went down with gasoline 
2068 launches from there. The land is east of the Peru 


386 


2069 bridge. When we got on the land it was pretty wet. 

2070 We started to plow several days later. We would get 
the highland ready first and then the low stuff; plant the 
highland first and then afterwards get the lowlands 
ready. We had to stop off pretty near a week apart on 
the places, because it was too wet. This year we planted 
about 150 acres. I have been husking some of that corn 
this year. The corn this year is in bad shape, some of it; 
soft and milky. I was working there last year, too. Last 

2071 year we got in a little earlier than we did this year. 
I think we had pretty near 200 acres in crop last year. 
We got part of it and some of it was soft, last year. 
There was quite a bit of it that was good. The water 
came up and we had to leave some of it on the ends and 
had to get it in on the ice later. The water came up in 
husking time. We had fair corn last year except the first 
plantings on the low ground was bad. The weather got 
so bad we were unable to get out some of the corn last 

2072 year. We couldn’t haul out over fifteen bushels on a 
load and get it out. 


Cross-Examimnation by Mr. Chiperfield. 


I don’t know exactly how much corn was taken off that 

land in 1911 but I should judge it would be about 9,000 
bushels. Some of it was good and some of it was bad. 

I don’t know whether we got around 60 cents a bushel 

for it or not. I don’t know what he got for it. There 
2075 ain’t very much corn in there this year. I don’t believe 
we will get over 7,000 bushels probably. I have been 
2074 doing the farming in there this year. Mr. Brannen 
used to come down this year and see what work we were 
doing. He has been there sometimes as high as once a 
day. It was the land Mr. Brannen was farming. I don’t 
think there will be 9,000 bushels of corn on this land this 
year. Some of it will average thirty bushels, thirty-five 


387 


bushels; the rest of it will average about forty. I don’t 
know how much there is already hauled off. I am not 
doing any weighing or anything of that kind. The south 
fieldis husked. We have got about one-half. One-half of 
2075 the field we have hauled out. I don’t know how much 
has been taken over to the cribs because I didn’t measure 
2077 the eribs.. I have no idea what corn is in the cribs nor 
2078 how much has been already husked. I have been down 
on that land two years now; two summers. I should 
judge there is 150 acres in corn this year. I can’t figure 
an acre and I have never measured it. I can just about 
2079 tell the size of an acre. There is two other pieces of 
this land in corn there this year; yes sir, there is three. 
Bierce has got a piece in there and a Polish fellow has 
got a piece in there and Cosgrove has a piece in there, be- 
sides Brannen’s land on section 21. There is four pieces 
2080 of corn all told besides what Brannen has planted there. 
I ecouldn’t tell you the size of the Braun piece. Cosgrove 
has about thirty-five acres planted; Bierce has about 
thirty-five acres; a Polander has about thirty acres be- 
low that. 

@. Do you know all who have corn in there? A. 
Bierce and this Polish fellow and Cosgrove and our- 
selves. 

(). That would make something over 600 acres of corn 
in there this year, wouldn’t it? A. Yes. 

2081 There was no overflow on that ground at all this year. 
T couldn’t tell about the corn crop last year. We didn’t 
sell it so I could know. My opinion is we have about 150 
acres planted. That is my judgment. 


388 


2082 Grorce Martens, a witness for the plaintiff testified as 
follows: 


Direct Hxamination by Mr. O’Conor. 


My name is George Martens. I live in Peru. I have 
lived in Peru about thirty-five years. I am thirty-five 
years old. I am at present working in the Peru Plow 
and Wheel Company. I have farmed and know where the 
land was located south of Peru, formerly worked by Sam 
Waugh. I worked there. I worked there in 1895, ’96 

2083 and ’97; for three years. I have done work there after, 
besides 1899 and part of 1900. In the year 1895 we 
started to work on the ground on the 17th of June. I 
was working for Mr. Waugh. We had nothing but corn 
growing at that time. I started to cultivate the corn 
field in June, 1895. The corn had already been planted. 

2084 The corn was then about thirty inches over the ground. 
I worked for him all during that summer. Stayed there 
in the winter; worked for him for three years consecu- 
tively. JI stayed with him. According to my judgment 
there would be about 300 acres in that bottom piece that 
hes south of the river, in the whole piece. It was under 
cultivation. At that time there was some timber on the 

2085 land. We husked the corn that year about November. 
The ground was dry when we went in there to husk; corn 
averaged about sixty to seventy bushels an acre; corn had 
matured but it was not very hard; not as hard as it was 
supposed to be; not dried out. After the corn was husked 
they run cattle and horses in it until about January. 

2086 In 1896 we started to plant in May. We planted the 
same as we did the first year; corn matured. We husked 
the corn that year in November. That was kind of a dry 
season. A man could’pull a good ordinary load; about 
fifty bushels of corn per acre was raised that year. I 


d89 


2087 am giving my estimate by weight. The land was put to 
the same use that year as in 1895, after the husking was 
over. ‘he three years I worked there were pretty nearly 
in the same condition. In 1897 we planted in May. The 
conditions in the three years were practically the same. 
Il worked there again in 1899. I worked for Sam Waugh, 
doing the same kind of work. We got the crop in that 

2088 year in May. We got the crop in all right. They put 

2089 in about 300 acres in 1899; crop matured that year. I 
was there at the time it was husked. I think it was a 
dry season the same way. I worked there until July in 
1900. I was there during the planting season that year. 
We got in on the land about May. I didn’t do the plant- 
ing. I done the dragging work there and plowing. Since 
1900 I have not worked on that land. 


2090 Cross-Examination by Mr. Chiperfield. 


They pastured some of this land. That is, they ran 
their stock on there for feed. The only feed there was 
stalks. After they took the corn off they let the cattle 
go in the stalks. I stayed there during the winter. We 
drove the cattle off after the high water would come off. 

2091 They would drive them off to higher lands. JI was not 
there in planting time in 1895. I think there was 300 
acres planted that year. It would average about fifty 
bushels to an acre. The corn dried out as far as a man 
could see. The corn never dries out in the bottoms until 

2092 a good frost hits it. I don’t mean the corn hadn’t got 
its weight, the weight it had in January. They figure 
eighty pounds to the bushel from October to the Ist of 
January, but you can’t take Judgment on the corn as 
you could do from January to March. Corn gets lighter 
after that. That year it dried out the same as other 
years. Take bottom corn, corn that was raised on these 
bottom lands, and it don’t dry out as quick as it does on 


390 


the prairie land. JI have observed that. It is a wetter 
2093 place to raise it; that is why. It is not as dry as over 
on the prairie. We put in the same amount in 1896, 
2094 about 300 acres. The balance of the land not in crop 
was in timber and rubbish. They had different places 
in there. One part where they called it the road in there, 
laid on both sides; it had timber in there and there was 
2095 a slough. I couldn’t judge the area of the slough. There 
were two sloughs at that time. The slough lying between 
Waugh’s and the coal company’s land might have been 
sixty rods long and about 200 feet wide. The other 
slough was the McCormick slough. There two sloughs 
were not farmed at all. There might have been two 
2096 acres in the second slough. They had other different 
spots where the ground was not used. T'hat would leave, 
all told, about ninety acres slough and waste land. It 
2097 would not be 320 rods; it would be about 280. There is 
not any timber there now. I have never seen this map 
before. I was over in Mr. Dunean’s office, but I didn’t 
2098 examine the map. According to that direction it would 
be right in here where the river bends. The big timber 
laid right along here, the south part of the land. Well, 
there is timber along the slough and then right in here 
is the corn field and right in here was the timber land. 
2099 There is corn right around here; right in through here. 
Then on the south side there was a slough. In 1896, 1 
think it would average about fifty bushels, and in 1897 
that averaged about the same. That was about the aver- 
age yield during the time I was there, fifty bushels. In 
1900 I stayed until July. Well, as far as planting the 
corn is concerned we got in a nice crop that year. The 
stand was good, but I wasn’t there in the harvesting sea- 
2100 son. It was not in husking time. It was in the spring. 
In the spring after I had planted, it came up just even 
with the embankment; she went down again. It didn’t 


391 


get into the cultivated part of the field. It came into 
some of the land that was prepared but not planted. It 
didn’t cover very much of it. I think it was in 1897. 


2101 Louis Lrmertu, called as a witness for the plaintiff, tes- 
tified as follows: 


Direct Exammation by Mr. Butters. 


My name is Louis Leidell. I live in Peru. I have 
lived there fifty-three years. Have been commissioner of 
highways. I know the land that was formerly occupied 
and farmed by Mr. Waugh in section 21, south and west 
of the river and east of MeCormick’s slough. Oh, I know 
that land ever since I was a boy. I live in the western 

2102 part of Peru. From 1891 down to the next ten years, 
I saw the land every week a couple of times. They raised 
eorn on it, as much as I know. I couldn’t tell the acres 
but they farmed the whole piece there; I don’t know. 
They raised very good corn on the bottoms all through 
there. J was down there on the land while Mr. Waugh 
farmed it. I was up where the corn was growing so I 
saw the corn. Well, I couldn’t just say every year what 
time they got crops in prior to 1900. They generally 
would have it in there up to the 20th of May or so. They 

2103 would husk the corn in November or something like that. 
They had a lot of stock there all the time. In 1892, I 
think that was the year they overflowed with water. I 
ean’t be just positive. I am familiar with the fair cash 
market value of that farming land in the vicinity of Peru 

2104 and La Salle during the year 1900. Well, maybe—any 
how at least $100 an acre. I have an opinion as to what 
is the fair cash market value of those lands since the 
turning in of the water January 17, 1900. After they 

2105 turned the water in it was very little. I guess practi- 
eally nothing. 


392 


Cross-Examination by Mr. Cliperfield. 


My present business is nothing but commissioner of 
highways. I can’t work. I ain’t able to work. I am 
2106 one of the commissioners of highways in the town where 
I live. I was a butcher before I became incapacitated for 
active business. I pretty near worked in that business 
all my life, outside of a little steam boating business 
about thirty years ago on the [lnois River. I have not 
been engaged in dealing in real estate very much. J] 
don’t own any farm property. Never did own any more 
than an acre and a half of land. That is all I owned. I 
bought several lots and sold them. I never have been a 
2107 farmer; not what you would call a farmer. I don’t 
know of any sales of land of this kind being made in the 
vicinity of the lands that are involved in this suit, out- 
side of the Huse & Loomis Ice Company. That land 
was located in the bottoms, west of the Waugh farm. It 
was sold by the Huse & Loomis Company to a man by the 
name of Krnart. He bought that from the Huse & 
Loomis Ice and Transportation Company, it must have 
some somewhere in 1898, or somewhere like that; I can’t 
remember. I don’t know what the lands sold for. I did 
know, but I forgot. No, I don’t know that land sold for 
$40 an acre on the 26th of January, 1900. I know it was 
2108 somewhere around that time. Well, I know there was 
time and again we talked about that land, that you 
eouldn’t buy it for $100 or anywhere near around that; 
that is all I know. I don’t know that nobody would have 
given $100 an acre for that or any land so located, along 
about January, 1900. The upland was sold at that rate at 
that time. Some land right north of Peru was bought at 
$150 at that time. Plantenburg owned it at the time it was 
sold. It was about two miles north of Peru. <A fellow 
named Salle bought it. It was somewhere around 1900. 


393 


2109 I don’t remember exactly. I don’t know the section. 
It is in Peru Township. I say it sold for $150 an acre. 
No, I don’t just say it was before 1900 but I think about 
that time. I couldn’t swear whether that was before 
1900. It might have been 1900 for all IT know. I don’t 

2110 think it was quite as late as 1904. Salle owns it at the 
present time. I know that this land is held and owned by 
the La Salle County Carbon Coal Company as a coal 
proposition. I didn’t know it then. I thought that Braun 
and Waugh owned it. I know it now. I know that the La 
Salle County Carbon Coal Company have a couple of 
shafts near this land. I know they are engaged in the 
business of mining coal. I took into consideration the 

2111 value of this land for farming purposes, for the arising 
of corn. I don’t know whether there was any coal there 
or not. If this land is underlaid with coal averaging 
7,000 tons to the acre, then it would have a very consid- 
erable value as coal land at that time. I didn’t take that 
into consideration when I made my answer. What I 
mean was that the land was worth about that for farming 
purposes. When I said that the land was practically 
worthless, J meant for farming purposes. 


Q. Now, if that section 21 raised 12,000 bushels of 
corn this year and 9,000 bushels of corn in 1910 and 7,800 
bushels of corn in 1911, would you say that that was 
worth nothing? A. Well, of course, I don’t know how 

2112 much they raised on it. 

Q. If it did that, I ask you, would you say that the 
land was worth nothing? <A. Well, if the corn is any 
good. 

Q. Well, if that land raised a full crop in 1900, and a 
full crop in 1901 and no crop in 1902, because it was a 
flood year, and raised a crop in 1908, 1904, 1905, and 1906 
and the sized crops I told you of in the other years, do 
you mean to say that the land was worth nothing? A. 


394 


Well, that corn that would be raised on there is not worth 
very much. 

I don’t know what they used it for. It was not fit for 

2113 much, I guess. .[t was not fit for horse feed, I say. 

Q. If it would bring 56 and 58 cents on the market, 
you would certainly think it was worth something 
wouldn’t you? A. Well, it looks that way, it is worth 
something. 

Q@. <All I can tell you is what the witness who raised 
it said and he said about sixty bushels to an acre. Now, 
if it raises that quantity of a crop, even if it don’t grade 
as high as it once did, it still is worth something, isn’t it? 
A. Well, I don’t think it is. 

2114 I saw some of the corn yesterday. I seen them driv- 
ing out of there. Spoke to the teamster. I was talking 
to him. He had on maybe twenty or twenty-five bushels. 
I can deseribe that load because the end gate came 
out and he lost quite a bit of it. It was poor corn; soft and 
mushy. It was yellow corn; the ears were of good size. 

2115 I wanted to use it for horse feed and it was no good. I 
picked it up. It was soft and mouldy. I don’t know 
what would make it mouldy, but it was mouldy. It was 

2116 too soft and wet, not dry enough. J know the corn ain’t 
dry. Yes sir, I looked at it. They didn’t show it to me, 
no. I looked at it myself. I didn’t know anything about 
coming up here at that time. I told you before that it 
eame from there. I seen it. I was right on the road 
when it came out; on the new road they built to come 

2117 out with that corn. Certainly, I know where it was 
picked. JI saw them in the field picking it. I see them 
pick part of it. I didn’t see them pick the whole load of 
corn. I told you I don’t know the name of the driver. I 
believe there is three drivers there. I only know one of 
them. He is a young man. I don’t remember what sort 
of a team he drove. I don’t know what kind of a team. 


395 


It wasn’t Weygand. I can’t give you any better des- 
eription than what I told you. If he is here as a witness 
he will tell you the same thing. I have seen something of 

2118 this yield of corn before that time in the last three 
years. I think they got a better kind last year than this 
year. I can’t tell how much of a crop they got in 1910. 
I can’t tell much about the crop they got in 1908. I see 
it every day. I see it every year. All I know they got 
poorer corn than they used to get. I told you what I 
know about the corn on the bottoms. JI know about the 
corn they got in 1907 just as I did last years’. I can’t 
tell you any more about the corn they got in 1906. I know 
I see the corn every year for the last twenty-five years 
that they farmed there. I know the grade isn’t any more 
what it used to be. I don’t know how large a crop they 

2119 raised in 1906. I don’t know anything about it. I don’t 
know anything about the size of the crop. All I know is 
about the corn; the kind of corn they raised, and I don’t 
know how much of a crop. I didn’t keep track of it. I 
did answer you. [I don’t know anything about it. I don’t 
know anything about the size of the crop in 1905. I know 
it was poor corn. I see it every year. 

Q. Where did you see any corn from that field in 1905 
and under what circumstances did you see it? A. Well, 
we drive through there time and again. 

Q. Did you drive through in 1905? A. Yes, sir. 

2120 I am positive that I drove through there dozens of 
times every year for the last twenty years. I seen the 
corn in 1905. I don’t know how many acres is in corn 
‘there now. J don’t know anything about it. I only know 
the quality. I don’t know how many acres were in corn 
in 1904. JI don’t know how many acres were in corn in 
1903. I don’t know how many acres were in corn in 
1902. 1902 was the flood. I don’t know how many acres 
of corn was there in 1901. I don’t know whether there 


396 


was a first class crop of corn raised there in 1901. I don’t 
know how much corn was there in 1900. 

(). Then if you don’t know any of these things, why 

do you say this land was worthless after 1900? A. Well, 
2121 I know the corn was better. 

That is all I have got to answer here; that the corn was 
better before the drainage district came in here than it 
is now. That is as far as I go with the corn business. 

(). Let us say the corn was better, if you want to tes- 
tify to that fact, would that make the land worthless 
now? A. Well, it would in my estimation. It wouldn’t 
be worth much anyhow. I told you what I thought about 

2122 it; what that land was worth. Well, of course, my own 
opinion as to what it is worth at present and has been for 
the last eight or ten years. 

(). Well, if you don’t know the size of the crops that 
have been raised, 1f you don’t know how many acres have 
been in there, if you don’t know anything about these 
things, how ean you testify as to the market value of that 
land since 19002 A. Well, I give you my judgment. You 
asked me and I told you what I thought it was worth. 

Well, I certainly don’t know how much corn they raised 
only I see what they are raising. 

Q. If you don’t know any of those things, how can 
you express an opinion as to its market value? A. Well, 
I would lke to know why not. 

I know I husked several acres of that corn myself be- 
fore the Drainage District came in here. I helped husk 
it in the ’90’s. I can’t tell you the year. I can’t give 

2123 you an opinion at all as to the time. It was in the ’90’s; 
I can’t tell you. I was husking for myself. I got an acre 
from a man down there, from a fellow by the name of 
KKounselman. I paid him just what he paid for it. I paid 
rent; $5, I think it was. I had to pay for the plowing 
and planting, too. I don’t remember how much I paid 


397 


for that. I raised it myself. I hired a man to plant and 
2124 plow. I don’t know how much he has got. 


@. Do you know how much it brought an acre? A. 
Well, I told you I thought about seventy-five or eighty 
bushels to the acre. 


Well, I didn’t measure other people’s corn, that is cer- 
tain. I raised that much on my acre and mine was not 
any better than the rest. That is the only time I ever 
husked in there, two different times; an acre. Some- 

2125 times you couldn’t hardly rent it. Them days you 
eouldn’t hardly rent a piece of ground in them bottoms. 
Now nobody wants it. 


(). Before 1900, did you base your value on the fact 
you had an acre of that corn two years? A. The value 
of the land, do you mean if I base it? 


Weeves. (A) Vos. do. 


No, I don’t know what section the land is on, that I 
mentioned as having sold for $150 an acre. It is on the 
plank road, what is commonly known as the plank road, 
in Peru township, about two miles from Peru. About 

2126 two miles north from Peru; maybe a little more or less; 
it is on the right hand side going out. I can’t fix the date 
any closer than I have already said. I was subpoenaed 
to appear as a witness here yesterday afternoon. I 
didn’t know his name as McPhedron. I know a man 
named Archie. We did have a few words. 


2127 Q. When? A. Oh, I don’t know when it was. 
Q. What? I don’t know when it was. 
Q. About how long ago? A. Two or three weeks. 


- He didn’t say that I was going to be a witness. He 
didn’t say nothing to me. I have no relation at all with 
the La Salle County Carbon Coal Company that I know 
of. Have no business connections with them in any way. 


398 


2128 Wititiam HassreLMan, called as a witness by the plain- 
tiff, testified as follows: 


Direct Examination by Mr. O’Conor. 


My name is William Hasselman. I live in LaSalle. 
I am forty-three years old. I have just moved out there 
this summer. My present occupation is teaming for 
William Brannen. I have farmed some of the bottom 

2129 lands located south of La Salle. ’93 was the first I 
worked around the bottoms. I worked there up until 
1902, started in 1893; worked there in 1894, 1895, ’96, ’97, 
98, 799, 1900 and 1901. 1900 I quit. I was out for one 
year and came back in 1901 again. I worked on the bot- 
tom lands from 1893 all down to the year 1901 with the 
exception of the year 1900. The land was located north 

2130 of the Carbon Coal Company ground. 

Q. This is Shippingsport road running south from 
La Salle. This is Shippingsport bridge south of La Salle. 
Now, where was the land located with reference to this 
land that is shown on the plat here, lying east of the 
Illinois Central right of way? A. It was right in here 
(indicating on the map). 

(. Would it be north of it? A. That would be north 
of it, yes. 

Q. Let me ask you whether or not at any time you 
ever worked any of the land lying west of the Illinois 
Central right of way and south of the center of the sec- 
tion; any of the Carbon Coal Company’s land? A. Well, 
I didn’t really work on it. I done some husking of corn 
on it. 


Q@. Did you ever work any of the land that lies west 
of the Illinois Central right of way and south and east 
of the Illinois River? A. No, but what is east of the 
Central Railroad I have; I have worked in there. 


o99 


Q. Abeut how often during those years did you go 

2131 through this land here shown on the plat that les in 

the southwest quarter of section 23? A. Oh, I passed 
occasionally to see how it was, right all the time. 


I did go through that land to go to the land I was work- 
ing. The road ran right along the Vermillion River. 
Joe Stricker was farming that land at that time. That 
land was cropped to corn during those years. It always 
done well. Pretty nearly every year between the year 
1890 and the year 1901 I did husking in there. I couldn’t 

2132 recall just exactly the time when I did husking. Pretty 
nearly every fall I did some husking. I have husked for 
Stricker. Well, I am sure I husked there in ’93, 794, ’95 
and ’96, in those years. I didn’t husk any after that. 
The last year was 796; generally would go in there to 
husk about Christmas. That corn would run to, I should 
say, from fifty to eighty bushels to the acre. It was good 
eorn. It couldn’t be beat. It was as good corn as you 

2133 could find. The corn did mature in there during all 
those years. I never saw any soft corn. I lived right in 
the bottoms on the Sullivan place; out on the bottoms along 
the Vermillion River. I should judge about eighty rods 
north of this land. There was a house and barn and 
eorn cribs. In going to La Salle I traveled right along 
the Vermillion until we got up to this road leading by 
the shafts and then I went west along the bluff and over 
the Shippingsport bridge into La Salle. 

Q. Take that road that runs east and west along the 
bluff, how far is it from the land that lies between the 
Illinois Central right of way and the river? A. I 
eouldn’t say exactly how far it is. 

The land comes very near the bottom of the bluff. 
Very near it on the south side. The Deer Park road, I 
should judge, is about a half a mile from the bluff. I 

2135 couldn’t say that the road is in the same place it was 


400 


formerly. | ain’t been down there for ten years. The 
present road is half a mile from the bottom land. There 
is timber and such as that along the road. The road is 
not a great way up on the bluff. It wouldn’t be over 
twenty rods from the bottom of the bluff up to where the 
road is. The bottom of the bluff wouldn’t be over forty 

2136 rods from the south line of this bottom land. The Deer 
Park road almost joins the south line of this bottom land 
in there. You are up quite a bit driving along that road. 
You are not up to the top of the bluff. This road is up 
about the center of the bluff. From that road you can- 
not look over the land very well on account of the timber. 
In crossing the Shippingsport bridge you couldn’t get 
a very good view from there. I have husked there and 
we drive around it when it was dry, around the river to 
make a short cut. Yes, I pass along the Llinois Central 

2137 and the Q. both. Oh, I would come through there every 
week or two weeks anyhow. Corn was growing there 
during those years. I couldn’t say exactly how many 
times I was in there for husking purposes. Pretty nearly 
every fall all the way from those years. I should judge 
the character of the corn was all right, what I could see 
of it; good solid corn. 

Mr. Cuiperrietp: Move to strike the answer as not 
responsive. 
The Court: I think I will let it stand. 
Defendant excepts. 

2138 It was mature ripe. The condition of the ground when 
I went in there those years was dry; froze over generally 
at that time. I should judge all the land that lies west 
of the Illinois Central and south and east of the river, 
that corn run from fifty to eighty bushels all that time. 

(). Now, during those times, you may say whether 
there were any lost crops on account of flood conditions 
or high water? A. No. 


401 


Cross-Examination by Mr. Chiperfield. 


I husked corn in the land west of the Illinois Central 
Railroad. 

(Witness was taken ill at this point. Further examina- 
tion will be found later in the abstract.) 


2140 Louts Borrs, a witness called by the plaintiff, testified 
as follows: 


Trrect Kxamination by ‘Mr. O’Conor. 


My name is Louis Boers. I live south of Peru. I wil! 

be forty-three years old next month. I have lived there 
2141 thirty-eight years. I am picking corn. I live two anda 
half miles south of Peru. [I am farming some land there 
this year. I am on section 28 and farm 21. I am farm- 

ing some of the land formerly farmed by Sam Waugh; 

the land that he farmed some years ago. That was the 
land that les south and west of the [llinois River and 
east of MceCormick’s slough. I rented a piece of that 
land there this year; seventy acres; planted about twenty 
2142 acres; couldn’t plant more than twenty acres; couldn’t 
get it, it was too wet; got in there this year in June, I 
think about the 15th. The land at that time was pretty 
wet. Twenty acres was all the land I could get into crop. 

We planted it to corn. The twenty acres I refer to is 
about the center of the patch. I don’t know how many 
acres they have got in there all told. The condition of the 
corn this year is soft; it is in the milk. I am picking 
2143 it now. I am feeding it to the cows and hogs. I farmed 
part of section 21 last year. We had the same piece. We 

eall it seventy acres. We farmed as much as we could 
there. I think we got in about thirty acres last year; got 

in a little earlier than we did this year; it was wet. ‘We 


402 


always had to ford to get into it. The high water came 

2144 up last year about September. The high water came 
up and we couldn’t husk some of the corn last year. It 
was a little better last year than this year. I don’t re- 
member what time we got in to husk, but around October. 
The ground was then wet. We had to drag out the corn 
little by little. Farmed the same land in the year 1910; 
had the same piece; seventy acres. In the year 1910 we 

2145 didn’t get in much crop. I don’t think we got any crop 
that year at all. We have had that piece of land all told 
six years. The corn raised in 1910 was not much good. 

2146 The corn we got off there was soft corn. During the 
six years that I have been there none of the corn was 
what you could call good corn. We got more last year 
than in any other year. I think we got around forty 
acres or something like that. 


Cross-Examination by Mr. Chiperfield. 


Rented this land from the Carbon Coal Company; paid 

2147 about two-fifths rents. I don’t know how many bushels 
we gave them as rent in 1906; have no record that would 
show. I didn’t keep track of it and had no record and 

I have no idea. In 1906 we had a pretty fair crop. I 
don’t know how many bushels. I didn’t keep any track 
2148 of it. We were farming another piece of land, two other 
pieces; farming what we call the home place. I didn’t 
raise much corn in 1907; didn’t plant this land at all in 
1907. It was a wet year. I don’t know how much we 
raised in 1908. I didn’t keep track of it. I can’t give 
you any information on that subject. I couldn’t state 
2149 how much we raised in 1909. I couldn’t tell you how 
much we had in 1910. I kept no record; no track of it. 
We raised about a thousand bushels off this seventy 
acres in 1911; we had in about forty acres. There is 
about twenty acres this year. We raised about 400 bush- 


403 


2150 els this year. My people have a suit pending against 
the Sanitary District and I am interested in the outcome 
of this suit. We didn’t keep track of any of the bushels 
raised or anything like that. Some people put it down 
in a book, but we never did. I haven’t even any recol- 

2151 lection or any memorandum that I could give to the 


yury. 


Wituiam HassetMan, resumed: 


Cross-Exanunation Continued by Mr. Chiperfield. 


2152 I know the crops being raised east of the Illinois 
Central Railroad. I don’t know how many acres in any 
one year were planted in that one piece. I don’t know how 
much ground there is in there. I never had any in there. 
The land I farmed was north of that. I think the land 
would raise fifty to eighty bushels. That is as close as 

2153 I can estimate it. All I know about it is that I husked 
some corn in there. I couldn’t say how many acres. It 
was planted on both sides and there was quite a good 
deal of waste ground; some ground that was in timber. 
There was some ground higher than others and some 
eround that could be planted to corn and some that could 

2154 not be planted. JI don’t know how much there was in 
timber and that sort of thing. | 


ArtHur Morrison, a witness called by the plaintiff, testi- 
fied as follows: 


Direct Exammation by Mr. O’Conor. 


My name is Arthur Morrison. I live in Peru. I 

am forty-three years old. I have lived in Peru 
2155 all my life. I am a Jaborer. Since 1890 down to 
the present time I have been acquainted with the Illi- 


404 


nois River; have fished along the Illinois River; when not 
working I was husking or fishing in season. I have 
fished every summer. I have fished along the river and 
through the bayous; fished all the way from Peru to the 
Henry locks; fished in the bayous or slough across from 
the town there, called the Huse & Loomis slough, where 
2156 they cut ice. Huse & Loomis slough is about a mile 
south of town; starts from the bridge; have fished in 
there since 1900. I remember when the Sanitary water 
was turned into the valley. I noticed a difference in the 
level of the Illinois River since the turning in of that 
water. I have some marks and objects at different places 
that help me to determine the condition of the river as it 
is now at low water and as it was before the District 
2157 water was turned in. One of these marks is at the head 
of the ice breaker, at the center of the river bridge, 
right in front of Peru, in front of Water street. There 
were three piles drove right close to the ice breaker, one 
in front and two back about three feet, and in low water 
before this drainage was turned in those pilings, you 
could go out and sit on them and fish there on the nose 
of the breaker, during the summer months. Since the 
water was turned in you can’t see them at all. The pile 
was probably four feet out of the water, before the turn- 
2158 ing in of the District water. Another place is the banks 
of what we call the lower slough, the north bank and the 
south bank. Before the drainage was turned in I have 
walked along that north bank with a spoon hook, casting 
flies for bass, and used to have lots of lilies growing along 
there. Now you can take a row boat and row along 
there. The water is up with the timber all along there. 
Another mark is at the point of the slough, where the 
slough emptied into the river. There was a steamboat 
sunk there some years ago, named the Belle of St. Louis, 
and there used to be a part of the hull stuck out of the 


405 


water; quite a bit of it; now, you can’t see any of it. It 
would stick out of the water during the summer season 

2159 and fall. At low water season now there is nothing 
there at all, nothing but water. 


Cross-Examination by Mr. Chiperfield., 


T am a laborer at odd jobs in Peru. I worked for the 
La Salle County Carbon Coal Company some years ago. 

(). You said in speaking of some of these conditions 
that now they were different than they were before 1900. 
Do you think that now is a fair time to compare the river 

2160 with low water conditions? A. Yes, I do. 

This is not now a low water stage of water in the river. 

(). Isn’t the [llmois River at the present time four 
feet higher than it was last July? A. I don’t know 

2163 whether it is or not. 

I have measured the water quite often to see the rise 
and fall of it. I often walk out and look at the water 
gauge. I have never taken a measure, to go out and 
measure it with a rule, but I have looked on the water 

2164 gauge. There is a difference between the level of the 
river now and what it was last July. I couldn’t tell how 
much. I didn’t measure it. There hag been a raise in 
the Illinois River in the last thirty days; I don’t know 

2165 how much; I haven’t any idea. I couldn’t tell you 
whether it 1s ag much as an inch or thirty-six inches. I 
don’t know when the river commenced to rise lastly. I 
think it was more than a week ago, about two weeks ago 
since I noticed it. It might have been a little before that. 
I looked at the river gauge during this summer and 
spring. I didn’t read it in low water. It didn’t bother me 
that the water was low. I only read the river gauge when 
it bothers me, when I wanted to go fishing and the water 
was up a little and I wouldn’t go fishing. 


406 


2166 It got as low this year as it has been in the last five 
or six or seven years, I guess. I don’t know what the 
stage of the river is now. I have no interest in the out- 
come of this suit. I think I could take measurements of 
the river now and tell how much lower the river was dur- 
ing the summer than it is now. I can’t give you any idea 
of the difference without doing that. I can’t give you 

2167 any other information than I have given. I know the 
river is ligher than it was last July. 


(Adjournment taken to November 21, 1912, at 9 o’clock 
A, M.) 


2169 November 21, 1912, 9 o’clock a. m. Court met pursu- 
ant to adjournment. Present, as before. 


Mr. CureerrieLp: JI would like either to have Mr. 
Leidel recalled for further cross-examination or else have 
the privilege, in connection with his testimony, of intro- 
ducing the record of the recorder’s office of this county 
showing the transfer to which he referred was made in 
1905 instead of 1900. I want to do that in connection 
with his testimony. 

The Courr: If that is the fact, I suppose they will 
admit that fact. 

Mr. CuiperFretp: J want to bring the record and show 
it the fact and have it be considered in connection with 
his testimony. It is the fact, as we have investigated. 

The Court: I will allow you to introduce that deed, 
then. 

2171 ‘‘This indenture, witnesseth, that the grantors, Peter 
Pantenburg and Lizzie Pantenburg, his wife, of the Town 
of Peru, in the County of La Salle, State of Illinois, for 
and in consideration of the sum of sixteen thousand five 

2172 hundred dollars ($16,500) in hand paid, convey and war- 
rant to William Sale of the Town of Peru, County of 
La Salle and State of Illinois, the following described 


407 


real estate, to wit: All that portion of the northeast 
quarter of Section 6, in Township 33 North, Range 1, 
Kast of the Third Principal Meridian, lying east of the 
center of the Peru and Grand De Tour plank road, but 
excepting and reserving all bituminous stone and mineral 
coal underlying said premises, with the right to mine and 
remove the same without interference with the surface 
thereof; containing 110 acres, more or less, situated in 
the Town of Peru, in the County of La Salle, in the State 
of Illinois, hereby releasing and waiving all rights under 
and by virtue of the homestead exemption laws of this 
state, grantors to pay the taxes for the year 1905. 
Dated this 16th day of December, A. D. 1905. 


PETER PANTENBURG. [ SEAL. | 
Lizzie PANTENBURG. [ SEAL. | 


STATE oF InLINots, or 
La SaLLE County. : 


I, F. E. Hoberg, a notary public in and for the county 
and state aforesaid, do hereby certify that Peter Panten- 
burg and Lizzie Pantenburg, his wife, personally known 
to me to be the same persons whose names are subscribed 
to the foregoing instrument, appeared before me this day 
in person and acknowledged that they signed, sealed and 
delivered the said instrument as their free and voluntary 
act, for the uses and purposes therein set forth, including 
the release and waiver of the right of homestead. 

Given under my hand and notarial seal this 16th day 

2173 of December, A. D. 1905. 
I’. E. Hopera, 
Notary Public.’’ 

Filed for record on the 18th day of December, A. D. 

1905, at 8 o’clock a. o. 


And the seal of F. KE. Hoberg, Notary Public. Re- 
corded on page 398 of warranty deed record, No. 352, 
of La Salle County, Illinois. 


408 


Artriuur Morrison, recalled: 


2170 = Cross-Examination Continued by Mr. Chiperfield. 


It is some time since I looked at the gauge on the river 
bridge. I couldn’t recall, I couldn’t state what date it 
was. I don’t believe I have examined that gauge since 
last spring; probably in April. I don’t remember what 
the gauge was at that time. My best recollection is that 

2173 August was the low water of this year. I saw the river 
yesterday from off the hill. I was not close to it. I live 
on the hill, about 150 feet above the river, and I see it 

2174 every day. I should judge it was about two and a half 
or three feet higher yesterday than it was last August. 
That is simply a guess. I know where Lock 15 at La 
Salle is. I didn’t make any observation of this piling at 
the river bridge during August of this year, when the 
river was at its lowest stage. I crossed the river bridge 
and was in the vieinity of them in a boat, but not where 
I could see them. I didn’t make any observation to find 

2175 out where these pilings were this year. I never looked. 
I am pretty sure they are still there. I couldn’t say 
whether the river was as low this August as it has been 
since 1960. I couldn’t recollect that far back. It has 

2176 been low season on the Illinois River; last season was 
not. I mean 1911. The spring of 1910 the river was 
very high; the fall was not. J account for the difference 
in the stage of the river by the rainfall and probably 

2177 the drainage. I don’t know whether the Sanitary Dis- 
trict is steadily discharging about 350,000 cubie feet of 
water a minute or not. If the discharge hag been a steady 
and constant one there naturally would be some reason 
for the fluctuation of the river. I know that the rainfall 
since 1890 has varied a great deal from year to year, and 

9178 they always did. TI know the rainfall in the watershed 


409 


of the Illinois River affects the river stage since 1900, 
just as it did before. I know that the stage of the river 
is affected by the taking off of the forests and timbers 
and the speedier discharge of waters to the river. If 
the Sanitary District has maintained a steady flow of 
390,000 cubic feet per minute for four or five years, the 
sudden changes and rises in the Illinois River must be 
due to some other cause than that. Before 1900 these 


2179 piles stood out of the water, about three and a half or 


four feet. I never measured it accurately. That was in 
low water; in the lowest water when they stood out that 
much. I have seen some piles covered with ten or twelve 
feet of water before 1900, in the spring of the year. I 
admit it would be unfair to compare the high river con- 


2180 dition with the low river condition to get results. 


To get a true and fair comparison you would 
have to compare similar conditions of the river. I 
have seen times when the Illinois River was a great 
body of water; almost a sea of water; extending 
elear from bluff to bluff, with a strong current, rapidly 
flowing down stream, and before 1900; in the spring. I 


9181 have seen it also since 1900. I think the water since 


1900 was higher than it was before. In 1892, May, was 
the highest water I have seen in the Illinois River; 1892 
was before the Sanitary District was opened. There was 
another year that was about the same stage of water. I 
have not seen any higher water since. That is the highest 


2182 water that I know of on the Illinois River. The high 


water of 1892 reached the cog-wheels of the turning table 
at the Peru bridge. They are located right on top of 
the stone pier, the circular cogs. That would be twenty 
to twenty-five feet higher above low water mark. I think 
it was almost that high again in 1902, practically the same 
as in 1892. Those were extreme high waters on the IIli- 


2185 nois River. I don’t mean to be understood or to say that 


410 


the river is four feet higher at high water than it used 
to be. When the water comes it is not confined to the 
channel. It spreads out all over the valley. I think when 
the water is confined to a 350 or 400-foot channel that it 
may be four feet higher than formerly. If you double 
the channel, make it 800 feet, it would be about two feet 
higher. If you increase it to 1,600 feet it would only be 
a foot. If you increase it to 3,200 feet it would be six 
2184 inches. If you could increase it to 6,400 feet it would 
be three inches. I don’t say water from the Sanitary 
District alone is raising the level of the river perhaps 
four feet. The highest the river has raised is four feet. 
That is, water from everywhere. The channel is only 
2185 about 300 feet wide. If a stream is confined in banks 
300 feet wide, if you move the other bank out 300 feet 
further, so as to make it 600 feet wide, the water will be 
only one-half as deep. If you move it out again double 
the distance, or 1,200 feet, it would only be a quarter as 
deep. If you move it out again for 2,400 feet it would 
only be one-eighth as deep. If you move it out again 
5,600 feet, it would only be one-sixteenth as deep. That 
2186 overflow don’t make any difference in the stage of the 
water from low water mark. If a channel is a foot wide 
with a stream flowing a foot deep, if you widen the chan- 
nel to two feet with the same amount of water, you de- 
crease the depth of the stream to six inches. If you 
2187 again double the distance you decrease it to an inch 
and a half. You might get it out so there wouldn’t be 
any water left. 

Q. Now, when this water commences to flow over these 
lands and extends back to the bluff a mile—it is a mile, 
isn’t it, from one side to the other? A. Over a mile. 

Q. When you get the water from bluff to bluff, do you 
mean to say that the water which has been added to the 
Illinois River, since 1900, by the Sanitary District or 


411 


from any other source, then maintains itself at a stage 

of four and a half feet higher? A. Four and a half feet 
2188 higher from what? 

_Q. Than what it was in previous years under similar 

conditions. A. Yes, I do. 

Q. The width don’t cut any figure? A. Well, it don’t 
seem to. 

@. You ean take the same amount of water that is 
four feet higher when it is in a channel three hundred 
feet wide and widen it to a mile and a quarter and it still 
stays four feet higher all over that distance? A. It 
keeps coming just the same. 

@. There is nothing to dam the stream below, the 
stream is not standing, but going on, isn’t it? A. You 
bet it is. 

©. Pretty fast;-too, isn’t it? A. , A. rip-snorter. 

Q. Goes on rapid all the time, doesn’t it? A. Yes. 

(). Three or four miles an hour under those condi- 
tions? A. Worse than that. 

2189 Q. Five? A. I have seen it eight. 

In low water, with the low water we have now it is go- 
ing four miles an hour, pretty near. Before 1900 it was 
sluggish. It didn’t go more than a mile an hour. If you 
take a stream of water in the banks of the Illinois River, 
that is flowing one mile an hour, it will carry a certain 
amount of water, and if you increase that current in the 
same channel to four miles an hour, I don’t know whether 
it would carry four times as much water, but it will in- 
crease the current. 

Q. Why won’t it carry four times as much water if 
it passes twice as fast? A. It might in some places, and 
other places it backs up. 

2190 J don’t want to change my answer that the current was 
four miles an hour. 

Q. All right, then, let us adhere to it and before you 


412 


said it was sluggish, about a mile an hour. Now, if it 
would flow four miles an hour now and one mile an hour 
then, wouldn’t it carry four times as much water at the 
same rate as it did before? If not, tell us why not? A.. 
In some places it would. 

2191 Below, but not above the bar, it is faster. Below it, 
but not above it, the current 1s accelerated; below the 
bars you will always find the swiftest current; above it 
it don’t flow as fast. 

(. Now, will vou please answer my question. Those 
bars were in the river before 1900 and they are there 
since? A. Yes, you bet they were. 

(). And they obstructed the river just the same be- 
fore 1900 as since 1906? A. Well, some of them have 
been washed out. 

Q. All right, then the current would be faster, 
wouldn’t it? Now, then, tell me, if you please, and I 
don’t want to have to ask the question again if you will 
answer it, tell me, if you please, if the current would be 
four times faster, 1f the water moves along four times - 
as fast, why wouldn’t it carry four times as much water 
at the same level as it would when it was only flowing’ 

2192 one mile an hour? A. Certainly, it would. This steamer, 
the Belle of St. Louis, was located at a point of the 
bayou, lower slough, about two and a half miles down 
stream, on the left hand side of the bank. There is an 
iron rod there from the hull of the steamer. It must 
be out about ten or twelve feet from the bank. The bank 

2193 is very shallow there. T'he part of the steamer that 
would show in low water, with reference to this iron rod, 
was about fifty or sixty feet from where the iron rod 
was; west. It was southwest a little, down stream. The 
ice would never touch it. I don’t think it is now in the 
same condition it was then. In the last ten or twelve 
years practically nothing left of it. Yes, you could find 


413 


2194 lots of it there. Yes, I think there is some of the ribs 
of that boat there yet. This rod was up on the bank, it 
was up on the bank. It might have been a couple of feet 
above the surface at low water. It must have been six 

2195 or seven feet from the river bank. I named the north 
bank of the slough, besides the steamer and the piles. 
That is about a half a mile up from where this boat was 
sunk, on the north bank, up stream. The elm trees that 
used to be there are all dead. now. There is one left up 
there in that neighborhood, but it is dead and fallen down 
to decay. There is no building or anything about there; 
no buildings or anything about it. If compensated for 
my services I will point out to-morrow to the engineers 

2196 the location of this path. I could observe as to those 
piles being out of the water three and a half to four feet 
and this path by the bayou and this steamer also being 
out of water practically every summer. The low water 
has been in the summer time for years. I don’t know 
Section 21 by number. I might know it. Yes, I know 

2197 that bank. I have a distinct recollection of Water street 
in Pern. At the time when I say this piling was three 
and a half feet out of water at low water, Water street— 
the level of Water street, the low water would be eighteen 
or twenty feet below the level of Water street. I think 
Water street is a little bit higher than the turn-table on 

2198 the bridge. The water would be eight or ten feet below 
the average point of the banks; probably about twelve 
feet below the highest point. I think Water street ought 
to be a little bit higher. I can’t name the year of lowest 
water, but there was one year when the water was awful 

2199 low. It was right in the summer time. I couldn’t say 
positively the month. JI couldn’t give that. I don’t like 
to answer that at all. I couldn’t answer whether that 

2200 year was nearer 1890 than it was 1900. The lowest 
water I have seen since 1900 was last August. 


414 


2201 Mr. O’Conor: Before starting in with Mr. Cooley I 
would like to offer in evidence House documents, Volume 
8&3, No, 263, report upon the survey of the Desplaines and 
Illinois River, and the title page thereof, the certificate 
attached of the colonel of the corps of engineers, acting 
chief of engineers of the United States, and certificate 
and seal of Henry L. Stimson, the Secretary of War. Of 
this document we wish to offer page 187, page 188, and so 
much of page 189 as relates to the discharge measure- 
ments of the Desplaines River and Illinois River, at Mor- 
ris, Illmois, m the year 1900. 

2202 And so much of page 190 as relates to the Illinois 
River near Devine, Illinois. 

And so much of page 191 as relates to the Illinois 

River near Devine, Illinois, in the years 1903 and 1904. 
It takes in about two-thirds of the page from the top 
down. 


> 


186 WATERWAY, LOCKPORT TO ST. LOUIS, ETC. 


‘Discharge measurements of Illinois and Des Plaines rivers - Continued. 


= 


ILLINOIS RIVER AT PEORIA, ILL. ~ 


[Survey of Illinois and Des Plaines rivers, 1902-1904. The gauge readings refer to gauge on Peoria and 
Pekin Union Railway bridge. Elevation of zero=435.53, Memphis datum.) 





taken from Peoria and 
ekin Union Railway . 
bridge). 


a Mean | Dis- 
: Area of |Maxi-  - at e8, 
Date. Gauge cross |mum Width.) % eloc- charge Status of Remarks, 
reading. section.|depth ity per| per river, 
| fs : ; > second. second. 
1904. Feet. | Sq.ft. | Feet. | Feet. |. Feet. | Cu. ft. 
July 2 8.0 | 3,764] 13.0 460 1.77 | 6,672 | Stationary..} No wind (taken from cable 
. “ue ae ; at mouth of Farm Creek). 
July 11 8.2 | 3,708; 13.0 420 180 br G67 1.52060. sens Light upstream wind (taken 
| . rom cable at mouth of 
: Farm Creek). 
June 18 | 9.9 | 4,676 | 15.0 460 | 1.94] 9,065 |..... pe ae No wind (taken from cable 
: . : : at mouth of Farm Creek), 
June 10 11.4 | 5,482] 16.6) 475 2.88 |} 12; 980 7. -... do...... Light downstream wind 
, . (taken from cable at 
A ; . mouth of Farm Creek). 
May 27 11.9 6,018 | 17.2 475 | .2.44 | 14,662 |..... Eades Do. aan 
May 13 13.8 | 6,683 | -19.2 BOO Ph 2078) AS Bae home oo ogee pie upstream wind (tak- 
en from cable at mouth of 
i ad ; Farm Creek). 
Apr. 22 | 15.8 | 16,275! 23.8] 1,020 1.87 | 30,456 ' Falling..... Light upstream wind (taken 
from Peoria and Pekin 
— ; Union Railway bridge). | 
Apr. 21 16.0 | 16,498 | 23.8] 1,020 2.02 | 38,306 J..... do......| Strong downstream wind 
; (taken from Peoria and 
Pekin Union Railway 
; bridge). 
Mar. 22; 18.8 | 17,916} 26.07} -1,020 3.21 | 57,588 | Rising...... Light downstream wind 
ce (taken from Peoria. and . 
Pekin Union Railway 
bridge). 
Ma . 23 19.3 | 17,819 | 26.0] 1,020; -3:33 | 59,333 |..... TO acon Strong downstream wind 


i 


NoTEe.—AIll but last four of above measurements are the means of 
All were taken with a Price current meter, large size. 


ILLINOIS RIVER AT PEORIA, ILL. 


[Taken under the direction of the United States Geological Survey. The gauge réadings refer to 
gauge at the Peoria and Pekin Union Railway bridge. Elevation of zero= 435.53, Memphis datum.] 





two consecutive measurements. 











NoTE.—All measurements were taken from the Peoria and 


small Price current meter, 


- 


1903. he ty 
Aug. 22 8.40} 7,218 |..... ae POE Ta Bc ak Hic God ie Ab ave coekeauwes 
Nov.* 12 D1, O80 Ta cwcccctvcunwet’s Ride) Deka We aney ace umne we 
July 5 ERA Se” Ff ERPGORE RET Fee es i ee Ee ee 
Oct. 23] 10.10] 9,699 |.......]. valtde'sts UE OW Oe ea ae 
Sept. 25] 11.92] 9,987 |.......|. hice CBP. (18, OA tee ee acy co 
af | 
May 13 BS. O04: 34, O78. bo wiies sé 947 1,39 | 15,358 | Stationary..; No wind. 
May 18] 13.21 | 11,883 |...:... OE 21,43 | 1601S fo cscs 
Mar. 3 14.94 | 18,297 |....... 953 1.75 | 23,285 | Rising...... 
1903. 
Apr. 8] 15.28} 18,718 |....... 951 1.88 | 25,840 |.....do...... Strong downstream wind. 
1904. 
_ Feb. 4 15. 42 | 18,689 |....... 933 1,20 | 16,305 | Stationary... Do. 
1908. 
Apr. 29 15.60 | 18,712 |....... 956 1,90 | 26,079 |.....do......| Strong upstream wind. 
1904. . 
Apr. 24 15.70 | 14,076 |....... 947 1.96 | 27 1 ream 
May 1! 16.00 | 14) 460 |....... 952! 2.16 31318 aie ta INS Ss. ares at sea 
ee: 30 16.33 | 14,876 |....... 943 | - 1.58") 21,124 | Falling..... Strong upstream wind. 
eb. 14 16.33 | 14,815 |....... 955 1.50 | 21, 784 | Stationary..| Strong downstream wind. 
1903. | 
raat 18 17.58 | 15,738 |....... 966 2.62 | 41,219 | Rising...... Strong upstream wind. 
1904. ; 

Apr. 16 18.00 | 16,869 |....... 953 2.46 | 41,460 |........--+.--| Light downstream wind 
Rabe 7 canes bape $08 | BE7 | BB RN7 |--+---0.-0----| Strong downstream wind, 
Apr. 2) ©21.17 | 19,813. |.......| 968] 2.171 410041.............. St neaeaie wind 
Mar. 31/ 21.48 | 20; De bee WOR COOP. ae wet. pede re ae 

Mar. 28| 21.83 | 19,979 |....... 9538 | 2.98 | 58,370 |.............. 


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‘WATERWAY, LOCKPORT TO ST. LOUIS, ETC. 187 


Discharge measurements of Illinois and Des Plaines rivers—Continued. 
ILLINOIS RIVER AT HENRY, ILL. 


{Survey of Illinois and Des Plaines rivers, 1902-1904. The gauge readings refer to lower gauge at the 
lock. Elevation of zero=436.64, Memphis datum. ] 





' Mean | Dis- 
Area of} Maxi- 
Gauge |". veloc- |charge| Status of 
Date. reading, CtOss_ | mum Width. ity per| per river. - Remarks. 


section./depth. second.| second. 

















1904. Feet. | Sq.ft. | Feet. | Feet. | Feet. | Cu. ft. - 
Aug. 4; 8.0! 6,295} 20.9 520 1.13 | 7,134 | Stationary..| Light upstream wind (taken 
: from cable about 1,000 feet 
below bridge). 


Jyly 5 8.5 | 6,348 | 21.5 520 -99 | 6,299 |..... do ......| No wind (taken from cable 
: % . about 1,000 feet below 
bridge). 
June 11 11.0 | 8,356 | 24.7 7 76 Mee Bib | Gia OF > St a (se Do. 





ILLINOIS RIVER AT LASALLE, ‘ILL. 


{Taken under the direction of the United States Geological Survey. The gauge readings refer to 
gauge at the highway bridge over river. Elevation of zero = 587.08, Memphis datum.] 


1903. . 
Aug. 23 —140. a, 152 eccceceleeeececes 1. 04 v2 448 eeteeereese eeee 
aS Se Ga Ys a meni NE ee aR SNS 
May 12 |—136.50 | 9,345 ]....... 657 1,18 | 11,111 | Stationary.. 
Apr. 4 |—133.60 | 11,281 |....... - 690 1. 56 pe fa ONE No wind. 
Apr. 28 |—132.55 | 11,805 |....... 658 | 1.61 | 17,884 |.....do...... Do. 
ar. 17 |—129.74 | 14,187 |....... 692 2.26 | 32,006 | Falling..... Do 


NoTEe.—All measurements were taken from highway bridge with a small Price current meter, 


ILLINOIS RIVER AT OTTAWA, ILL. 


[Taken under the direction of the United States Geological Survey. The gauge readings refer to 
| ote e Chicago, Burlington and Quincy Railroad bridge. Elevation of zero = 587.05, Memphis 
um. . ip Be \ 





1903. : 
Aug. 28 |—129.57 | 2,924 |.......]........ RI CTT A ip. dndiesecanen 
wee | hase. 04 | 2, 847 |... ole nnceees RO | Fan ns oh wkc asin 
Nov. 12 |—129.00 | 3,090 |..... ‘Jd piwebwlaass BOB: Fs BAO io cd. cweccuce 
May 12 |—128.42 | 3,511 |....... 545 3.32 | 11,616 | Rising......} Light downstream wind. 
Beeeeae [= iee.85 | 8,466 |.......)......--| 3,86 | -21, 002 |... cence 
1904. | S berga . Se 
May ‘19 —128. 10 3, 583 ‘eseeeecesleosesn eecs 8. 29 ll, 754 eeeeeeebheeseee Downstream wind, 
1908. | a 
fame. oe taened. Oe.) S&S, 609 |....ccu]escadecs 8.75 13, 543 | EL Se 
Apr. 5 |—126.25/| 4,738 |....... 599 3.71 | 17,573 | Rising...... Strong downstream wind. 
Apr. 28 |—126.07 | 5,001 |....... 609 3.67 | 18,340 | Falling ..... Strong upstream wind. 
~ 1904. : i : 
May 2 |—125.80| 4,775 |....... 609 OE A ee Light downstream wind. 
Apr. 17 |—125.40 | 5,164 }....... 627 3.62 | 18,714 | Stationary..| Strong upstream wind. 
Apr. 26 |—123.90 | 6,136 |....... 652 es oe ae ee Strong downstream wind. 
1008. | ee 
Mar. 18 |—122.98 } 6,818 |....... 651° 4.53 | 30,885 | Rising...... No wind. 
Mar. 30 |—118.30 | 10,217 |....... 746 ee 8. Ce Strong downstream wind. 
4. 96 | 54,473 | Stationary..| Light upstream wind. 


Apr. 2 |—117.30 | 10,987 |....... 751 
j | ; 

















Nots.—All measurements were taken from Chicago, Burlington and Quincy Railroad bridge with 


a emall Prira enrrent meter 





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188 WATERWAY, LOCKPORT TO ST. LOUIS, ETC. 


Discharge measurements of Illinois and Des Plaines vivers—Continued. 
ILLINOIS RIVER AT OTTAWA, ILL. 


[survey ot Illinois and Des Plaines rivers, 1899-1900. The gauge readings refer to gauge on highway 
bridge. Elevation of zero=454.74, Memphis datum. ] 





; . Mean Dis- 

Area of | Maxi- . , 

Date. |, G828e | cross | mum | Width. 1° a “per | river. a ee 
section. depth. second. second, 











1900. Feet. | Sq. y Feet. | Feet. Feet. | Cu. ft. 
8 4,22 g, 








Ma os Met & . & Saas eee 2.09 | &, 805 ae Sawa 
Do. ne 3.38 4, 196 SSIES NEMS EGS SF fe has ac AO Fe aes 
May 12 a ® 7 a 2.17 | 9,415 ‘Biationary.. 
May 9 SORT S410 |i. 22-00). nceccce 2.29 T 9, BB0 ne. 2A oud ken 
May 11 RS 20S RR Sea ie 9.21 | 9,955 |..... ae 
Apr. 16 he Be RR, Sara 2.39 | 11,745 |..... GY cutee 
Apr. 12 See) RETR Wi ckadcales segues 2:90 1 13,802] ...5. ee 
Apr. 25 ee Be Be loateny cle eaw sues OGY TS OES fice sk 4 fa SEP Riad 
Do... Ate). AOS len dase sheswenash 2.67 | 13,348.) <<: = ss swe 
Apr. 23 4.63 SMa Gibhsn'p ha won 2.57 | 18,133 | Falling ..... 
Apr. 17 | SAB Ree eaerener 2.61 | 18,172 | Rising ...... 
Apr. 12 Ce Re eee, eee 2. Gi 15, Gib teres. Gh naa 
Apr. 18 er i ees ely are sue Oe 206-1 14:20 hw nn he an 
Apr. 21 5.20 t ‘6,482 |....2.. Did wane 2.74 | 14,992 | Falling..... 
Apr. 11 6.90 | 5,682 |....... ria ech 2.67 | 14,614 ec ee 
SRT? Raa eS Bk a iE 2.88 | 16,599 | Rising....-. 
Apr. 20 5.00 1) 6, B08 fo cennes has akewe’ 2.86 | 16,585 |..... QO He tess 
Apr. 9Y G. 22 b: G, 147 |. ncsees baidasies'ss 2.97 | 18,243 | Falling ..... 
Apr. 7 he ee See Fant ing 3.09 | 20, te 8 eee O0:.< hows 
Apr. 6 7.25 | 6,681 [iicies: Jesseeees 3.13 | 21,505 |..... A0x 2c. 





i 





NoTe.—All measurements were taken from the highway bridge with a large Price current meter. 


Discharge measurements of Fox River: 
AT OTTAWA, ILL. 


[Survey of Illinois ana Des Plaines rivers, 1899-1900. The gauge readings refer to gauge at. Decnaree 
section. Elevation of zero=456.33, Memphis datum.) 





| Mean | Dis- 


Area of | Maxi-| 
De : veloc- |charge; Status of 
cross mum | Width. ity per| per river. Remarks. 


ection. se ay ‘second. se cond. | 


Gauge 
Date reading . 


| 
1900 Feet. | Sq. ft. | Feet. | Feet | Feet | Cu. ft. 

Apr. 18 Ge se Oe es [ede eeeee 1. RSL AS QE cenicws ‘ewanties Water backing up from Illi- 
nois River. 

Apr. 12 Ey Nes Es at ee Tht arias Tei eee oo ve ne ee Meter out of order. 

May 9 Ne Be SR 99) L, POs one ve seduade Do. 

May 10 Sp EC" S ey Renata HA A OMEIRES nicica'sbinds Do. 

Apr. 23 Se a eS ae Be ihge ais A eR) ea 

Mayet} 8.981 1,88%).....:. Baka naes . 65 | Bie suceccahics 

Apr. 21 Ty a ie aa [oanes ess pe ELS a Re” |), Sen ea Water backing up from Illi- 
/ ) is River. 

Apr. 20 8 4 ee | Seb eae | 1. 28 | oo A Sik ie 

Apr. 19 4.02} 1,692 |....... he baad 1.31 | 2,280 |......... piles Do. 

Apr. 9 re ae eT Bs Wan 1.208, BBB ga sendie ss 

Apr. 7 5.45 | 2,003 | saver | Lea 1 AE hs SSR i sienna 











NoTE.—All measurements taken from Main Street Bridge with a large Price current meter. 
































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WATERWAY, LOCKPORT TO ST. LOUIS, ETC. 189 


ILLINOIS RIVER AT MORRIS, ILL. 


[Taken under the direction of the Sanitary District of Chicago. The gauge readings refer to gauge at 
the highway bridge. Elevation of zero= 487.95, Memphis datum. } 





$.02 | 4,624 |....... | MBE 1.67 | re EEC 
MR MOET ee do Ulu ee a ey Maa ae 
Oe OS aa RE T0600 9781... 0... 
Ty Ser Reais tes seaeepemE ne 
OE OUR Frew shecuis ke OS ae a 
kD ear Aeris pagan a Sag a teas i einaaan 
BON 2 206 fo ckcelewccecce oe le RRR anegRS 
28 AU S Deieaas pene 2.00 | 10,560 |......... iat) 
es 7 i S00 PAN OON |. vaca. «cz 
SUE oS? Saas eRaCsete et Sie a ~ ene 
UN, ES ae eRe Ae Pe eee 
29) BOO Foc ics clacendee S08 4:90 OOP hs pices an uas cc. 
a Ree Se ee Me OTE Ee a Raeeeeprerenanes 
Reet ee. te SER ey. 2 Re 
Qa” OF a See ee EE ss Ys 
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EOE Oe aes aren eS Te 8 aan nO 
Ee Rae ay TO Bp as Birr Se ERGY 4 oe bina 
ET EE St ai ca inet Ee" RE 7 ie ia a 
6.05 | 6,485 |....... PAC ey: “EES Gy SE Riel ae 
6.12 | 6,481 |....... Re ee 2.30 14, 890 hess gcc tacts Ce 
8. aa 7 Ria Bee ee "9,30 | 15,079 |.......0s.00 
RA Ihe i ass ac 0. OF i OL. sn 
mi “7S re Rare Nea od SEARO icici ccc ake 
ea ne Baer Be Re WE Ee a ie 
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Ee BASH RES 2461 V7. BAB |e ncacessocce ee 
4 O81) F896 2. caboc cs eee % BE CIRO as luc tactocs 
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8.66 | 8.668 |....coclsocooscs SOLS? 5 PRO 
apt Be gy aaa MLE a 2:78 | 28.744 |..:... cular De 
eo Re oe ee i eae 2.78 | 24,275 |... cccccces ei 
MSD BWA lee, dss ae Di Be ee eae aaia . 
BOS) B PIR ob addin canes 2.41 1 98 O70... 
& 80 | 8.916 |sc..s0<lesucer <A. (268 Peed ie 
6001.8, MOL. och a ccekee EOE WE pepe eee 
9.33) F000 1... 20.0 |Neeases 0.97 F96.906 Lc tise ness’. 
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Saal 9. Tis. xc decalaue cael 9.90 } GA FAB 1c. conc. soatne 
O57.) DDT .sccksekeabeue ES ERTS RRR 
9.66.| 9,230 |...scnaleescsece B96 IB, SAL ose anne tene 
es) DS 406). uc sbakcodan a Me yy nee 





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190 WATERWAY, LOCKPORT TO ST. LOUIS, ETC. 


Discharge measurements of Illinois and Des Plaines rivers—Continued. 


ILLINOIS RIVER AT MORRIS, ILL.—Continued. 














G “Maxi relod: finaree | Latitas ot 
, auge ; : veloc- | charge us O 
Date. reading.| CTOss | mum Width. ity per| per Svar. Remarks. 


section. depth. second. second. 








| a a a ———— —s SS en 
1892. | Feet. |Sq..feet.| Feet. | Feet.'| Feet. r Ou; ft. 
May 10 OST BONG bode hos eee he | ey 
Oh ad 961 9400 be ae dees het, Re ee 
Do... ee BS oe Pear oe eb See ee 23 cubic feet of total dis- 
| / Re | charge was over bottom. 
Boss} = Ioe } 9. B87 1). tee ae. 4 ae oe 27 cubic feet of total . dis 
. ; charge was over bottom. 
Do...| 10.05.| 9,583 |.:.....1. ee OG ON AE Tel ok 52 cubie feet of total dis. 
charge was over bottom. 
BGC.) ME MAGEE Icocochekevareeesl ) bl OL. to a eee, lawakemeus -----| 58 cubic feet of total dis- 
charge was over bottom. 
May 9 DOO) - 2, Ae thon tac tlcwmakies ST RR OCREI Cs da knew ene i 113 cubic feet of total dis- 
aA charge was over bottom. 
Do...| 11.21 | 10, 265 |.......]...2..-.| 2.98 | 30, 166 |.............. 122 cubie feet of total dis- 
; ; | charge was over bottom. 
Baars BA. OL) A OPA lone wkenloucowd pe} 804 | 31,500 |. ccewceesss 128 cubic feet of total dis- 
a) charge was over bottom. 
Diccl - Bac O.) BO GEO Bic ceesel.s ee S02) SE OO lisae vane scons 148 cubic feet of total dis- 
"ta charge was over bottom. 
July 3 LL. 76} ORT ines. Fd ae adh: Ree LEI Dab alee an la prbioniew , 
May 9 | 911.90 | 10,768 |.......)..... Sen 1 cain a Tt ae Pe Ch antoh cic wake 158 cubic feet of total dis- 
| ; , charge was over botiom. 
July 8 VE pe i Es 8.90 1 BBB7O 1G ceticewacwese 
DG .uc) © 2287 1 PGR I. nnccns|- las a inated DO Ree ha soe aoas 
July 4 BAe EGMECTAD  Racueuecivass<>0s S18: 1 BOG foc uast eck pa 
July 3 NG Og ee ee ER AD AT A Lilac wie wrevdlies . 
July 4]: 12,90 | 10,861 |....<..|..... PN hey At + Be a Sais ; 
May 9 ir Reon | a Se * 3.15 | 34,935 |..............|-181 cubic feet of total dis- 
f ' charge was over bottom. 
May 8 RR PD ia wow slodescccs eK ge a ee 773 cubic feet of total dis- 
: charge was over. bottom. 
oe ee 0S) et 8 eee eee BS 1 SEG lin chkeccvcesces 1,377 cubic feet of total dis- 
; | charge was over bottom. 
DOuFsl A MRE fod xccice le cee ccas O34} OB Se ies oc wtacaveat 3,414 eubie feet of total dis- 
. "s \ ; a ; - @harge was over bottom. 
Do...| - 15.15 | 18,078 |....... ERE 8.25°| 47,291 |,......- see ,| 4,796 cubie feet of total dis- 
. | charge was over bottom. - 
May 7 Ae FN es ee o-| - 2.97 | OO, 304 je... hip alte an 16,743 cubic feet of total dis- 
: “ae. : charge was over bottom. 
Do... 17.75 | 14, 870 eeeeeesleeeecccs 3. 07 62, 313 eee eeeeesesces Do. : 
UT i RR ce rao ORE ee 20,997 cubic feet of total dis- 
a ie say . charge was over bottom. 
- May 6 REE BEG To nscccelpdveccgsl:) We Me [GFP Gee ledenesss nee -Do. 
cant EVE EM OED bececccelecvodcee, 8.06 |} TE, FOO denecenie «-+---| 24,614 cubic feet of total dis- - 


charge was over bottom. 





-_ NoTr.—Where a discharge over the bottom is shown, the areas and velocities given are for main 
channel only. f 


a= - 


ILLINOIS RIVER NEAR DIVINE, ILL. 


. (Survey of Illinois and fa Rai ry be 8, 1902-1904. The gauge readi refer to gauge on Elgin, 
- Joliet and Eastern Railroad ridge. Elevation of zero=587. 20, Memphis datum.] 





June 15 —94.6| 4,318 9.8 565}. 1.23.| 5,300 Stationary. No wind (taken om cable 
a ‘he Ve | about 600 feet below Elgin, 
j . ‘ - Joliet-and Eastern Rail- 
road bridge). 
July 23) —94.5| 4,353] 9.7 575 1.22 | 5,304 /..... Os anane ht o> a wind 
: taken from cable about 
feet below Elgin, Joliet 
; and ‘ata Railroad 
bridge). 
July 8) —94.3| 4,337] 9.7 560 | 1.86] 5,910 ].....do...... joy 2 LE wind (taken 
cable about 600 feet 
: ioe Elgin, Joliet and 
Eastern Railroad bridge). 





NoTE.—Each of the above measurements is the mean of two consecutive meéeasuremen All 
taken with a Price current meter, large size: " wes 
























































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WATERWAY, LOCKPORT TO ST. LOUIS, ETC. 191 


DES PLAINES RIVER AT THE KANKAKEE CUT-OFF. 


[Taken under the direction of the United States Geolagical Survey. The gauge readings refer to 
, gauge at discharge section. Elevation of zero=5s7. 16, Memphis datum.] 





l 
eee 
Nov. 26 86.95 a ee eee ee 1.30 | 5,138 | Stationary.. 
May 9/| —86.93 | 3,920 |....... 307 | 1.30] 5,078 |.....do...... 
Aug. 30 | —86.75| 4,029 |....... $73 | 1.43 | 5,758"|...-. Bi omnes 
July 11 | —86.75 | 3,968 |....... $37} 1.4456, 718 b.: “ORE da 
‘ee, 96} — 86,90.) 4,083 |. ......)ccecccee 1.44 LED sd. Oita det he 
Apr. 9, —86.61 | 4,091 |...---- 370 1.43 | 6,483 | Rising ....- -.| Strong upstream wind. 
Bept. 26 | —86.55 | 3,845 |.-.....|.---=->- 1.46 | 5,621 | Stationary .. 
Apr. 26 | —86.10| 4,284'|....... 372 | 1.48| 6,189 |..... aS ale t 
Dec. 17 | Or eG ae >t aeenene 322 | 1.54| 6,956 |..... ee Ice on both shores. 
- Mar. 15 | —$3.59 | 5,199 |....... 382 | 1.66| 8,646 | Falling..... No wind. 





ay 
Nore.—All the measurements were taken from a cable with a small Price current meter. 


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415 


9903. Mr. CuiperFIELD: I want to object, first, that no proper 
foundation is laid first for the admission of the book. 
92905 Mr. Curperrietp: Well, I simply object that it is in- 
competent, irrelevant and immaterial, and I think I will 

let it go at that. 
The Courr: I.think I will let it go in. 
Defendant excepts. 


HK. L. Coonry, a witness called by the plaintiff, testified 
as follows: 


Direct Examination by Mr. O’Conor, 


My name is E. L. Cooley. I live in Chicago. I ama 
civil engineer for the Sanitary District; have been con- 
nected with the Sanitary District of Chicago since 1904, 

2207 in May. I am here in answer to a subpoena served on 

me yesterday. I received the subpoena and I assumed 

I had no volition in the matter—I had to come. I. was 

not able to consider it in any other way. I naturally am 

not in sympathy with suits against the Sanitary District, 

but I didn’t suppose I had any choice about it, so I came 

2208 along. I checked up the data that appears on the sub- 

poena that was given me yesterday. There are two small 

corrections there, only a few feet. They don’t amount to 

anything. I don’t have the flow measurements of the 

2209 District from the year 1908, including that year, 

down to the present time, 1912, inclusive. I couldn’t 

bring them. The observations have not been worked up. 

There is a great deal of labor in working up these exhib- 

its. There are readings in various places and I used, in 

the four or five years I worked it up, it took.me over a 

- 2210 month a year to work it up, The readings for the year 
1908 have not been worked up so far as I know. 

Q. If they were worked up who, in the employ of the 

District, did the work? A. Why, this is turned over to 


416 


the electrical department. They opened their plant in 
1908 and those gate readings and that class of work is 
now under that department, so I have little or nothing 
to do with it. 

When it was under my direction we took readings 
every half hour, forty-eight readings per day, and the 
average was worked up for those forty-eight readings. 
The average is shown on the data attached to the sub- 
poena. They simply show the average flow during the 
quarter. ‘T’hey don’t show the daily flow or just how 

2211 much ig flowed on any day. The data does not show 

2212 the flow on any day. No, it goes by quarters. The 
data doesn’t show for any one month. The data for the 
year 1909 has not been made up at this time. We have 

2213 no tabulations since 1907. Nobody has worked it up. 
I used to do that, but I have been doing other work. That 
is in the electrical department and they have not worked 
it up. There is nobody there that has the duty of tabu- 
latutg the flow and working it up into an average. That 
was one of my regular duties up to the year 1904 and 
then I got busy at other work and these reading came 
in and nobody worked them up. In 1905, 1906 and 1907, 
they were worked up by another man, who had some 
help, that was available to do it. Since then there has 
been no record worked up that I know of, no continuous 
record. 

(. Now, do you know when they first commenced to 
use the gates at Lockport for the purpose of letting the 
water out of the channel? A. Yes, sir. 

Q. When? 

Mr. Cuiprerrietp: Now, if your Honor please, I object 
to this line of examination for the reason the deposition 

2214 of this witness was taken and IJ insist they cannot use 
both his deposition and his oral testimony, concerning 
the same subject-matter. 

Objection overruled; defendant excepts. 


417 


Mr. O’Conor: Q. In the year 1905 was your deposi- 
tion taken, Mr. Cooley? 


Mr. Curerrrittp: Then, if your Honor please, I de- 
sire now at the first opportunity to move to strike the 
deposition of K. L. Cooley upon all the matters concern- 
ing which he is orally interrogated concerning at this 
time. 

2215 The gates located at Lockport may have been used for 
the purpose of letting the water out of the District chan- 
nel. J don’t remember. Yes, J have been there since 
1905. I don’t go there very often; once or twice in the 
past year or two. They don’t use the gates as a rule. 
They most always use the bear trap dam and since the 
water power has come into use it is usually taken at the 
side of the water power, going through the wheels on the 
water power and over the dams at that place. 


Q. Have you any additional gates there that you 
didn’t have when your deposition was taken in the year 
2216 1905? A. J don’t remember that deposition of 1905. 


Yes, there are two gates down at the water power 
which went into use in 1908. They are about two miles 
below bear trap dam. 


Q. Now, since the year 1905, has the Sanitary Dis- 
trict of Chicago constructed a channel along Thirty-ninth 
street in the City of Chicago? A. That, I believe, was 
done by the City of Chicago. 


Q. Is it a part of the Sanitary District? A. No, no. 


It begins in the lake and discharges into the Halsted 
street slip, or sometimes called the stock yards slip, which 
is a slip on the south branch of the Chicago River. That 

2217 fork joins in near Ashland avenue, which is east of 
Robey street, about half a mile; about half a mile up 
stream from Robey. 


418 


Q. What is the capacity of that channel or conduit, as 
you eall it? | 
Objected to by the defendant; objection overruled; 
defendant excepts. 


2218 Ultimately that water flows through that Thirty-ninth 
street conduit into the Sanitary District channel. 

(). Ultimately, yes; and doesn’t it go into the channel 
at a point in the river where it won’t affect the shipping 
in the river itself? 

Defendant objects as immaterial; objection over- 
ruled; defendant excepts. 


(). Doesn’t that come into the channel or come into 
the Chicago River at a point where it won’t affect the 
shipping in the river? 

2219 Defendant objects as immaterial; objection over- 
ruled; defendant excepts. 


A. Qh, it doesn’t affect the shipping. The velocities in 
that branch are very low. It doesn’t affect navigation. 

(). What is the capacity of that Thirty-ninth street 
conduit? 

Objected to as being incompetent. (Argument on 

22:20 the objection.) 

21 Objection overruled; defendant excepts. 

2222 A. Why, by gravity, with the usual difference added 
between Lake Michigan and the outflow, it may be forty 
or fifty thousand. It might be nothing, depending on the 
flow in the river. If there is no flow in the river there is 
no flow in the conduit. 

Q. I am asking you what is its capacity? 

Objected to by the defendant. 

A. Capacity depends on the slope through the econ- 
duit and the stage of the river and the stage of the lake 
determines the flow, by gravity through the conduit. 

(. What is the ultimate capacity or maximum capac- 
ity through the conduit? 


419 


Mr. Cuiperrietp: If your Honor please, I object to it. 

The Court: He may answer the question. 

Mr. Curperrietp: May I be heard very briefly? 

The Court: If there is anything new. 

Mr. Curperrieyp: There is something new. 

The Court: That is, anything additional. I don’t 
eare to hear what you have already said, Mr. Chiperfield, 
but if there is anything new, I will hear it. 

Mr. Cutrperrietp: Your Honor, I don’t usually indulge 

2223 in remarks just for the sake of exercise. I get plenty 
of that during the day, and, your Honor, it is a matter 
of right for counsel to be respectfully heard by the court; 
it is not a matter of favor. 

Here is a conduit running from the lake down to the 
Chicago River. The size of the conduit is not, as I re- 
member, in the evidence. 

The Courr: He hasn’t had a chance to testify to very 
much about it, yet. 

Mr. CurperFretp: He is not going to testify very much 
about it unless it is over my objection, 

The Court: You have a right to object, but he may 
have a chance to answer without so much argument. I 
don’t say he will have a right to answer the questions 
without your objections, but I do say he may have a 
right to answer the questions without so much argument 
each time. 

Mr. Cureerrretp: I object to the remarks of the court, 
and, if your Honor please, I refer you to the case of Cur- 
ran against the Sanitary District, where the court says 
it is the absolute right of counsel to respectfully present 
their objections and to present arguments to the court. 

The Court: If you have anything to say on the ques- 
tion, you may say it, but I don’t care to hear anything 
further said by you as to the propriety of the counsel 
and the court. 


420 


9994 Mr. Cuiperrirtp: I want to present that authority. 
May I present that authority? 

The Court: No, sir; you may address yourself to the 
question. 

Mr. Curperrietp: I ask leave to present that authority 
to the court. 

The Court: I overrule your motion. 

Defendant excepts. 
The Courr: I still think you may answer the question. 
Defendant excepts. 

2225 There is no fixed capacity to that conduit. It varies 
with the hydraulic conditions. It has been estimated and 
I have not followed it since, that by gravity it would take 
a flow of forty to sixty thousand cubic feet per minute 
from Lake Michigan into the stock yards slip. That all 
depends on the slope through the conduit. It is about 
two miles long. 

Q. Now, since you testified in 1905, at the time the 
depositions were taken, has the District widened the Chi- — 
cago River? A. There has been widening in places. 

Mr. CuHIperRFIELD: J want to make the same objection, 
if your Honor please, and I want to be briefly heard on it. 

The Courr: I deny the request to be heard. I over- 
rule the objection. You may answer the question. 

Defendant excepts. 

A. There has been widening in places going on quite 
a number of places, almost continuously since the work 

2226 was begun. 

(). Since the year 1905, how much has the Chicago 
River been widened? 

Mr. CuiperFIeELD: If your Honor please, I desire to ob- 
ject as incompetent, irrelevant and immaterial, and I 
desire to be briefly heard on the objection. 

The Court: I think I will overrule the motion and 
request. 

Defendant excepts. 


421 


A. I don’t know specifically. The work is not in my 
charge. I have just common knowledge that work is go- 
ing on here and there, but I don’t keep track of it. 

Q. Now, why, Mr. Cooley, has the District been wid- 
ening the Chicago River since that time? 

Mr. CurrerFietp: I object to it as incompetent, irrele- 
vant and immaterial, and I desire to be briefly heard on 
the objection. 

The Courr: The witness may answer the question. 

Defendant excepts. 
Mr. CurreerFietp: Is my request to be heard denied? 
The Court: Yes, sir. 

Defendant excepts. 

2227 A. My understanding is there were some bad points 
in the Chicago River which were obstructions to naviga- 
tion and it was largely on that account. | 

Q. Now, since the year 1905 has the Sanitary District 
constructed any other channel for the purpose of bring- 
ing into the Chicago River, or the channel proper, any 
additional sewage? 

Mr. Cutprrrietp: I desire to object, if your Honor 
please, on the ground that the contemplated work is not 
embraced within the declaration or the pleadings of this 
ease and I desire to be briefly heard upon the proposi- 
tion. 

The Court: Well, if you have anything in addition to 
what you have already said to the court, I will be very 
glad to hear you, but I don’t care to have a repetition of 
what you have already said. I will hear you for a few 
minutes, 

Mr. CurperFieLp: ‘T’'wo minutes to present this dec- 
laration. 

The Court: I didn’t say two minutes, sir. I said a 
few minutes. Everybody understood me, I think, eae 
you, as to what I said: 


422 


Mr: Cu1rPerFieLD: I except to the remark of the court. 
228 Defendant excepts. 
229-2230 (Argument on objection.) 
Objection overruled; defendant excepts. 
2232 Mr. O’Conor: Q.- Have you constructed, since 1905, 
what is known as the Evanston channel? 

A. Itis called the North Shore channel. 

Q. Where does that—through what territory does that 
run? A. Why, it starts from Lake Michigan, in the 
southeast quarter of Wilmette— 

Mr. CHIPERFIELD: Just a minute before you go ahead, 
please. I want to make the same objection to this line 
of inquiry, if your Honor please. 

The Court: [I will let him answer the question. 

Defendant excepts. 

A. It starts from Lake Michigan, in the southeast 
quarter of Wilmette, and passes through the northwest 
quarter of Evanston and south on the west side of Hiv- 
anston into the Chicago at Lawrence avenue, where it 
joins the north branch of the Chicago River. 

Q. What, if anything, has the District constructed at 
Ogden? Have you constructed a dam at Ogden? 

Defendant objects. 

A. A dam where? 

(). At what is known as the Ogden ditch. 

Mr. Curperrietp: If your Honor please, I object to 
that on the ground, further, that the witness has testi- 

2233 fied concerning these things in his deposition. 

The Court: J don’t recollect whether it is in the depo- 
sition or not. 

Objection overruled; defendant excepts. 

Mr. Cutprrrrep: I want to make one more motion. 
If your Honor please, I move to strike the entire deposi- 
tion in this case, for the reason that the deposition and 
the oral testimony of a witness cannot both be used im 


my 
D) 


423 


2234 a suit. I move to strike the deposition of HK. L. Cooley, 
as heretofore read in this case, and exclude same from 
the consideration of the jury. 

Motion overruled; defendant excepts. 

Mr. O’Conor: Q. Have you constructed a dam at the 
Ogden ditch, Mr. Cooley, that throws the water this way 
that formerly went towards Lake Michigan? 

Mr. CuIPERFIELD: Same objection. 

Objection overruled; defendant excepts. 

A. Why, we have constructed no dam on what is called 
the Ogden ditch. 

Q. Well, what have you constructed there? A. In 

2235 the old days the water sometimes, during high water in 
the spring, did flow east from Summit into the Ogden 
ditch, into the south branch of the Chicago River, and 
then they afterwards built a spillway as a substitute for 
the Ogden ditch below Riverside, and that spillway has 
since been leveled off. The right of way of the Sani- 
tary District below the bear trap dam in the bottom of 
the Desplaines has no specific width. It varies with the 

2236 tract of land and converges; I could not say. I don’t 
know the width of it. I have no particular recollection 
of it. There are no fences there to show. I never looked 
it up to my knowledge. I don’t remember of ever testify- 
ing as to the width of the right of way. I have no recol- 
lection of any such testimony in the Smith case concluded 

2237 in Bureau County this week. I know at the south end 
of it there is a strip, but I don’t know the exact width. 
I couldn’t tell until I looked on the right of way map. I 
don’t know whether it is more or less than a thousand 
feet. Everything is supposed to be included in the esti- 

2238 mate of the flow. At the time I made the tabulations 
there were no wheel pits there. I don’t know specifically 

_ just how.they do it down there this year. It is in charge 
of the electrical department. J don’t know any of the 


424 


details since the year 1907, just how the measurements 
are taken there now. It is the intention, I suppose, to 

2239 include everything. No, I don’t know the total amount 
of water that was flowing in the Illinois River at Henry 
in the year 1904, April 4th, July 5th, and June 11th. I 
have none of those records in my mind and I have not 
made a special study of the Illinois River. I am not 
qualified as an expert on that part of the river, and my 
knowledge of that part of the river is general. My work 
has not required me to make a study of that. 

2241 This exhibit reads August 4th. It is one day, as far as 
IT ean judge. Our exhibit is for the whole quarter, in- 
eluding three months. I could not make a true compari- 
son between those two exhibits. The data is not given 
here and it is not given in the exhibit. It is given here 

2242 for this one day, but it is not given in the exhibit for 
one day. The figures on my data are supposed to be 
the precise average of the twenty-four hours. The flow 
varied under conditions. Ordinarily the flow was fairly 
continuous. There might be conditions under which it 
would change. The flow has been worked out in the form 
of an average. It would run along day after day where 
the variations were slight. Of course, the fluctuations of 
the lake would affect it from day to day and from hour 
to hour. The flow was never exactly constant. The fig- 
ures in the averages that I had are a fair average of the 

2243 daily flow, during the period under which I super- 
vised it. 

(). If you take the figures that you had during the 
quarter that included any day of the month that is given 
in this government report, and figure the amount of 
water that was actually flowing through the river as 
shown by the government report, and then take and de- 
duct from that the amount of flow for the period shown 
on the subpoena and on the data, you would have a fair 


425 


idea, at least, of the quantity of natural water and the 
quantity of Sanitary water, wouldn’t you? 

Mr. Curreerrretp: I object to the argumentative form 
of the question. 

Objection overruled; defendant excepts. 

A. Why, the difference between this flow and the 
quantity delivered by the Sanitary District, I assume, is 
what you want? 

@. Yes. A. Why, the exhibit which you have does 
not contain data by which you can figure the flow on 
August 4th; it is the average of about ninety days and 
there might have been extensive variations in the ninety 
days; I could not say at this time. I do not charge my 
memory on those things. 

2244 ~=Ag a rule they will flow about a certain amount. The 
average that is shown on this data is the average for 
the period. As a rule they will flow about the same 
amount without there was some reason for changing’ it 
from year to year. I don’t remember those things. I 
would have to look it up. 

Q). I -will put it this way. During any quarter would 
there be any great variation? A. There might; might 
be some reason for it which did not appear in the record. 

2245 If there was no reason for it I would not expect it. 
There might be conditions where they would reduce the 
flow for a period or might increase it for a period. There 
is no fixed rule about that. Sometimes it was the word, 
of the president. The president of the District would 
say do so, change it, without any engineering reason. If 
you take the difference during the months of July and 
August in the year 1904 of the water flowing into the 
Illinois River, and then having deducted the average 
from July 2d to October 1st from the gross quantity of 
water, you would get a fair approximation of the quan- 
tity of natural water that was flowing, and the quantity 


426 


of Sanitary District water; but they would have to be 
the same period. I wouldn’t say you could take one pe- 
2246 riod and compare it with another period. You have to 
cover the exact interval. I could not say you could com- 
pare two intervals, not the same, and get a fair approxi- 
mate difference, because during one interval, different 
from any other interval, conditions might have been rad- 
ically different. The question is too general to be an- 
2247 swered in any other way. 


Q. If we take the flow as shown on the government’s 
survey on the 4th of April, 28th of April, 12th of May, 
and 7th of July, and then take your data as to the flow 
of the river during the months of March, April, May, 
June, July and September, couldn’t we approximately 
determine the natural water and the amount of Sani- 
tary water? A. I would not say that you could from 
those differences get a fairly accurate flow, average flow 
on the given day, because we don’t know what the flow 
on that day was through the district. Your record may 
show what it was in the river at that time, but we did 
have considerable variations of flow at times. 

2248 For some years the president of the Board would 
sometimes direct the flow that we should flow. He had 
his reasons, which were not always engineering reasons, 
and I could not say what his reasons were at that time; 
it has passed; it is a past event and there was nothing to 
fix itin my mind. There might be a period of a year or 
two when the variations were slight. On the other hand, 
there might be considerable variation, for some reason, 
which did not appear in the record. At the present time 

2249 J assume they are maintaining an average ina way. I 
am not keeping track of them. Some matters of detail 
are somewhat different at the present time than from 
the years 1903 down to the year 1907. Under present 
conditions the flow is not uniform for twenty-four hours. 


427 


They take more at some times than others, because they 
are using a lot of water through the wheels for water 
power and that makes a variation in itself. Now, whether 
they so manipulate the dam so as to make the flow uni- 
form for the twenty-four hours, that is what I am not 
prepared to state. At certain times water would go 
through the wheels and at other times they could flow 
water over the dam which they could very well maintain 
a fairly uniform fiow, but whether they do or not I am 
2250 not prepared to say. Well, yes, I will leave the sub- 
2251 poena with the court reporter. 


2252 Subpoena from the Circuit Court of La Salle County 
commanding HK. L. Cooley to appear in said cause on the 
21st day of November, 1912, and to bring with him cer- 
tain tabulations of flow. Subpoena dated November 19, 
1912, 

Mr. O’Conor: Well, I will have this marked as an 
exhibit. 

Whereupon said document was introduced in evidence 
by the plaintiff and marked Exhibit 14 and is in words 
and figures following: 


2254 ‘Tabulations of flow, showing flow of the Sanitary Dis- 
trict by quarters from 1900 to the end of 1907. 


428 

















EXHIBIT 14. 

Average 
PERIOD. Discharge. 
C, Fa 
1900—10 Weeks January 17th to March 31st 144266 
2nd Quarter April ist to June 30th 183729 
3rd Quarter July ist to September 29th 184406 
4th Quarter September 30th to December 29th 230020 
Yearly January 17th to December 29th 188136 

49 Wks. 
1901—1st Quarter December 30th to March 30th 303667 
2nd Quarter March 31st to June 29th 210574 
3rd Quarter June 30th to September 28th 218560 
4th Quarter September 29th to December 28th 236490 
52 Wks. Year 242323 
1902—1st Quarter December 29th to March 29th 252592 
2nd Quarter March 30th to June 28th 248078 
3rd Quarter June 29th to September 27th 256122 
4th Quarter September 28th to December 27th 271232 
52 Wks. Year 257006 
1903—I1st Quarter December 28th to March 28th 344890 
2nd Quarter March 29th to June 27th 280495 
3rd Quarter June 28th to September 26th 276194 
4th Quarter September 27th to January 2nd ~ 295881 
53 Wks. Year 299299 
1904—1st Quarter January 3rd to March 25th 323536 
2nd Quarter April 3rd to July 2nd 289475 
3rd Quarter July 2nd to October ist 265289 
4th Quarter October 2nd to December 31st 270841 
51 Wks. Year 287285 
1905—1st Quarter January 1st to April 1st 324724 
2nd Quarter April 2nd to July ist 258537 
3rd Quarter July 2nd to September 30th 255058 
4th Quarter October 1st to December 30th 236495 
52 Wks. Year 268703 
1906—1st Quarter December 31st to March 31st 268899 
2nd Quarter April ist to June 30th 274245 
3rd Quarter July ist to September 29th 221310 
4th Quarter September 30th to December 29th 306112 
52 Wks. Year 267641 
1907—1st Quarter December 30th to March 30th 314951 
2nd Quarter March 31st to June 29th 310096 
3rd Quarter June 30th to September 28th 333503 
4th Quarter September 29th to December 28th 270195 


52 Wks. Year. 307186 





429 


2255 Cross-Examination by Mr. Chiperfield. 


I am the same KE. L. Cooley who gave my deposition 
in the case of the La Salle County Carbon Coal Company 
against the Sanitary District of Chicago, taken on the 

2256 25th day of April, 1905. These averages in Exhibit 14, 
which I have introduced at the request of counsel for the 
plaintiff, show all the water passing through the con- 
trolling works at Lockport. That is, all that passes from 
Chicago has to go that way. The Sanitary District dis- 
charges are included. I do not have charge of this de- 

2257 partment at the present time. The address of the man 
who does have charge of that department is Edward B. 
Elheott. He lives in Chicago. I think he came in about 
1908. He has been continuously and openly a resident 
of Chicago since that time. He has an office in the Dis- 
trict, on the fifteenth floor of the American Trust Build- 
ing. He has had his office there ever since they moved 
from the Security Building. Asa rule, he is there habitu- 

2258 ally, every day. I cannot say specifically that I have 
very much knowledge except as a matter of information. 
I assume they are running about a certain flow. I couldn’t 
testify to that. 

Q. What is that flow? 

Mr. O’Conor: I object to the question; not gone into 
on direct examination. 

Objection sustained; defendant excepts. 

2259 I entered the service of the Sanitary District in May, 
1894. Have been there since then. The channel was not 
built at that time. 

Q. Mr. Cooley, prior to the opening of the channel 
on the 17th day of January, you may state if there was 
any connection of this channel with the Chicago River? 
A. Why, except that a week before the 17th of January 
they opened a connection to fill the channel, which was 
empty. 


430 


Before that time there had been nothing in the channel 
except rain water. There was no flow from the Sanitary 
District channel into the Illinois River in the summer pre- 
ceding the 17th day of January. The channel was empty 
except for rainwater. It was not done; there were places 

2260 in the channel that were not dug out. The channel was 
shut off at the Pan Handle bridge and there was a diver- 
sion channel made from the corner of that cut up by the 
Bridewell, west of the Pan Handle, and that had been 
made, all except about fifty feet, more or less, and they 
cut a trench and built a flume around that thing, I should 
judge about two weeks before the 17th of January. Be- 
fore that time there had been no connection of the Sani- 
tary District with the Chicago River or Lake Michigan. 
The channel was empty at that time except from the rain- 
water. This Thirty-ninth street conduit which the City 
of Chicago discharges into the stock yards slip at Thirty 
ninth and Halsted street, that slip connects with the south 
fork of the south branch of the Chicago River, which 
joins it up near Thirty-first street. It directly discharges 

2261 into the south fork of the south branch of the Chicago 
River. It is about one mile from where the Chicago 
River connects with the Sanitary District channel. No 
water is discharged from this Thirty-ninth street conduit 
into the Illinois River, except as it passes through and 
over the controlling works. This Thirty-ninth street con- 

2262 duit is merely tributary to the Chicago River. This dis- 
charge goes over the controlling works. I don’t know 
that after the Thirty-ninth street conduit was opened 
into the Sanitary District that the flow would be any 
greater, by reason of that fact, than it was before. The 
flow from the conduit never has been very large. It is 
intended for the relief of certain sewage on the south 
side. The widening of the Chicago River has increased 
the flow of the Sanitary District to some extent. For- 


431 


merly, on the velocity and stage the Secretary of War 
had ruled, on the question of navigation, and as these 
bends were trimmed away and the river straightened, 
why, we could increase the flow. <All the flow 1s meas- 
ured over the dam. 

Q. Is there any flow, except seepage or leakage, that is 
not measured on the bear trap dam or at the controlling 
works? A. Why, that covers everything, including the 
Desplaines River. 

2263 The North Shore channel is simply a loop from the 
lake at one point to the Chicago River, about a mile from 
the lake at another point. It does not flow directly into 
the Sanitary District channel. It flows into the north 
branch of the Chicago River. It must be nearly ten miles 
from the place where the Chicago River is connected with 
the Sanitary District channel. It flows into the north 
branch of the Chicago River. The main channel of the 

2264 Sanitary District begins about Thirty-first and Ashland 
or Robey. That is on the south branch. This Thirty- 
ninth street conduit was connected two or three years 
ago, after we opened our channel. I should think it was 
before 1905. I don’t recall the date. This North Shore 
channel has been opened since January 14, 1905. This 
Ogden diteh was constructed away back in the ’60s or 
70s. Forty years ago, more or less; the Ogden ditch 
was not constructed by the Sanitary District of Chicago. 
They did not have anything to do with it, in any way. 

2265 The dam which I spoke of, that was constructed in the 
fall and winter of 793. J think it was finished that winter. 
One of the first works I did after I entered the employ 
of the Sanitary District in 1894 was to repair the dam. 
It was practically completed and finished and in use be- 
fore I went to the Sanitary District in 1894. In the 
spring of 1894 we put a facing of Portland cement on it. 
It did not change the hydraulic condition at all. Two or 


432 


three years ago we leveled off that spillway and made a 
2°66 new spillway. I don’t think that there was any change 
in it before I came. 


2267 Q. I wish you would answer my question, please. 
From January 14, 1895, down to June 14, 1900, was there 
any change of any kind in the Ogden dam, in its character 
or its use? A. No. 

Q. My question was, was there any change in the 

construction of the Ogden ditch from 1895 to 1900? Was 

it completed during that period? You went there im 
2268 1894? A. No, there was no change. 


The City of Chicago built that conduit out of the water 
funds, as I understand it. It was built by the City of 
2269 Chicago. 
(Mr. O’Conor reads to the jury from House Docu- 
ments, Volume 83, No. 263.) 
2270-2279 Tabulations from said documents. 


2280: Howarp §. Hazen, a witness called by the plaintiff, re- 
sumed the stand: 


Direct Examination Continued by Mr. Butters. 


The La Salle County Carbon Coal Company has not 
in its possession or under its control the plat, a copy of 
which is reported on page 24 of this record. I have made 
search to ascertain that fact so I can swear positively 

2281 on the subject. The La Salle County Carbon Coal Com- 
pany has not in its possession the record appearing in 
book 300 of the recorder’s office of La Salle County, com- 
mencing on page 920, about the middle of the page, and 
purporting to be proceedings in reference to the will of 
Henry Young; commencing at that point and continuing 
on pages 921 to 540. I have carefully looked over the 
archives. 








433 


Mr. Burrers: Now, we offer in evidence the plat on 
page 24 of plat book E of the recorder’s office of La Salle 
County. 

2283 Surveyor’s certificate to plat, dated July 1, 1887. Ac- 
knowledgment of plat by the Illinois Valley Coal Com- 
pany, by I’. O. Wyatt, manager. 

2284 Certificate of acknowledgment. 

2285 Mr. Burrers: And we also offer in evidence the pages 
commencing, as I stated in my question, on page 520 of 
book 300, miscellaneous records, in the office of the re- 
corder of deeds in La Salle County, to page 450, inclu- 
sive. 


Cross-Examination by Mr. Chiperfield. 


This is a plat appearing in the plat book that has been 
referred to, of certain lands which were subdivided by 
the La Salle County Carbon Coal Company. I have 

2286 searched all of our records for it. I personally con- 
ducted the search. We keep records in one place. We 
have no Chicago office. Our records are in the La Salle 
National Bank, most of them. I have not been able to 
find this plat. I don’t know whether or not the plat is in 
existence. J don’t know what has become of it. I made 
search for this plat yesterday and Sunday. I don’t know 
how recently, if ever, I had it in my possession. I never 

2287 had in my possession, so far as I know, the copy of the 
last will of Henry Young. I don’t know that I ever had 
it in my possession. JI don’t know whether I ever had 
this plat in my possession. I have no knowledge on either 
of these points. Further thought would not add anything 
to that reply. I don’t recollect ever having had either of 
these things in my possession. Hither the plat that has 
been referred to or the last will and testament of Henry 
Young and the proceedings attending the probating and 
appointments of executors. 


434 


The plat is objected to by the defendant for the rea- 
son that no proper or sufficient foundations has 
been laid; objection ‘overruled ; defendant excepts. 

Mr. Cutrperrretp: There is another branch on which I 
can examine him while we are waiting. 

The Court: About the payment of taxes? 

Mr. CHIPERFIELD: Yes. 

The Court: I am satisfied. 

2290 I am familiar with the La Salle County Carbon Coal 
‘Company’s mine No. 1, That mine is now in operation. 
This mine map which is now handed me shows correctly 
the workings of mine No. 1, so far as Section 23 is con- 
cerned. We stopped mining there in 1894, from the north. 
The mine is still working south. It is not working in 
Section 23. The coal that is shown to have been taken 
out in Section 23 was taken out prior to 1894. The lines 
upon this plat, for instance, May, 1907, November, 1907, 
June, 1908, December, 1908, May, 1909, December, 1909; 
each one represents a survey; represents the face of the 

2291 coal on those dates. We have done no mining in 24 from 
May, 1894. There might have been some in there on 
Section 23. I don’t know about that; I can’t tell you. I 

2292 am familiar with the mine that is known as the Union 
mine, The map which you hand me is a correct map for 
1910, up until July, 1910. I don’t see any lines there 

2293 showing Section 21. Those are the workings upon Sec- 
tions 21 and 22 at that time. Those workings have been 
extended maybe 300 feet since. The coal in 21 and 23 
has been taken out within the last five years, I should say. 
I know the mine of the La Salle County Carbon Coal 
Company known as the Rockwell mine. The Rockwell 

2294 mine has been mining coal from Sections 23 and 24. I 
could not make an estimate of how much has been taken 
out on 24, nor on 23, either. I don’t know how much has 
been taken out. This map has been corrected up until 


435 


May, 1911. Some of the workings have been advanced 

2295 150 feet. That map is correct as to Section 24. As you 
get over on the Illinois River, on 23, they have been ex- 
tended. 


436 


Mr. CuiperFreLtp: JI desire to offer, in connection with 
the evidence of Mr. Hazen, to offer in evidence the ex- 
hibits which have been marked for identification 15, 16 
and 17, as illustrative of his testimony. 


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437 
2296 Exhibit 15, blue print of mine No. 1. 
2297 Exhibit 16, blue print Union mine. 
2298 Exhibit 17, blue print Rockwell mine. 


2299 Mr. Cuiperrietp: Q@. Mr. Hazen, you say you have 
paid taxes upon the property in. question? 

A. Yes, sir. 

Since 1890, twenty-two years. In the tax receipts which 
I have taken are included other lands than the lands in 
question. The tax receipts which I have in court pertain 
to various tracts of land that are included in this suit, to- 
gether with other lands. They are the original tax re- 
ceipts. 

Mr. CurperFIELD: [| desire, if your Honor please, to 
offer so much of the tax receipts as pertain to the land 
in question, in evidence, in connection with the testimony 
of Mr. Hazen. No other portion; simply those that per- 
tain to the land in question, and let them be transcribed 
in the record and returned to Mr. Hazen. 

Mr. Burrers: We object to them for any other pur- 
pose than showing title. 

Mr. CuriPrrFIELD: It is certainly upon the question of 
showing title. We are contesting that; and any other 
proper purpose they may be used for. 

Mr. Burrers: We object for any other purpose. 

Objection overruled. 
2301 Mr. Cutperrienp: May we regard these as being read, 
or shall we read them? 

The Court: You may consider them read, as far as 
the court is concerned. 


2302 


438 


TABULATION OF Tax RECEIPTS, 


above referred to, produced by the plaintiff and offered 
in evidence by the defendant, said tabulation showing: 


Ist. The description of the several tracts of land upon 
which the taxes were paid as said eee) 4080 appear 
in said tax receipts. 


2d. The number of acres embraced in each description 
as stated in said tax receipts. 


ad. The assessed valuation of said several tracts, as 
shown by said tax receipts. 

4th. The amount of taxes paid by the defendant on 
said several tracts as described therein in each of said 
several years. 

Where the above data is not given, the receipts for said 
several years were not among the tax receipts produced. 

Where the assessed valuations are not given and the 
amount of taxes paid is given, the valuations were not 
carried out by the collector in the receipts for such years 
so omitted. 

Where a number of acres different from the number 
given in the column headed ‘‘ Acres,’’ appears in brackets 
in any given year, it indicates that the number of acres 
so inserted is given in the receipt for that particular year 
as the number of acres of land embraced in said tract, 
instead of the number given in the column headed 
‘¢ Acres.’? 


439 














TABULATION. 
2303 
1885. 1886. 

‘Assessed Taxes Assessed Taxes 
Description. Acres. Value. Paid. Value. Paid. 
W. 48.75 a 
S. of river 
N. W. 4, 23 48.75 $ 400.00 $30.40 $ 400.00 $ 27.64 
Except R. RB. 
Ss. W. 4, Pom lar.30 2,000.00 149.80 1,500.00 104.19 
Except R. R. (160-a) (160-a) 
S. E. Y, 23 152.68 6,000.00 449.38 5,500.00 376.82 
Exeept R. R. 
WwW. %S. W. (35-a) (35-a) 
yy, 24. 27.76 3,500.00 262.17 3,000.00 206.41 
S. frac. S. E. 1H 
4, 22 70.21 700.00 28.60 500.00 aL.20 
N. of river 
S. of canal, 2176.60 1,514.00 65.70 892.00 STAY 
S. frac. of 
N. 1, 21 99.00 1,957.00 73.78 1,802.00 52.83 
S. W. frae. 
y,, 21 131.00 2,609.00 98.37 2,403.00 70.45 
Frac. S. of 
river, 
S. E. 4, Sal alee 2,609.00 98.37 2,403.00 70.45 
2304 

1888. 1889. 
W. 48.75 a 
S. of river 
N.. W. 4, PSMA Ome weer cere 21.80 400.00 20.25 
Except R. R. 
S. W. 14, 23 ey me Re cet onus 81.64 1,500.00 75.97 
Except R. R. (160-a) 
S. E. 4, Bie bie Re ae 299.34 5,400.00 273.47 
Except R. R. 
W. %, S. W. (31.50-a) (27.66-a) 
4, 24 Pike OMe ee 163.25 2,900.00 146.87 
S. frac. S. E. 
y,, 22 Ure LOLS cee 14.28 500.00 11.96 
N. of river 
S. of canal, 
21 POOLS Neiereta eS (nl ea ie Td hae auth 
S. frac. of 
N. 44, 21 OU cic. ses sale oc keke 
S. W. frac. 
yy, 21 PE POUMMION Nn 28h wes ies a oa eek 
Frac. 8. of 
river S. E. 
LJ Looe oe, 


Y,, 21 


ee @ oe 


1887. 
Assessed Taxes 
Value. Paid. 


$ 400.00 $ 30.60 


1,500.00 112.61 
(160-a) 
5,500.00 412.73 
(35-a) 
3,000.00 225.20 
500.00 17.75 
1890. 
ee tanny 20.36 
Shee 76.29 
eee 274.53 
(27.66-a) 
hecapetere 147.45 
ey ee 13.27 
803.00 21.15 
1,622.00 42.68 
2,162.00 56.89 
2,162.00 56.89 








Description. Acres. 
W. 48.75 a 

S. of river 

N. W. 4, 23. 48.75 
Except R. R. 

S. W. 4, 23 132.30 
Except R. R. 
S. BH. a, 23 
Except R. R. 
W.%S. W. 
hy, 24 
Satrati. be 
yy, 22 

N. of river 
S. of canal, 
21 

SB. frat.or 
N. %, 21 

S. W. frac. 
iY, 21 

Frac. S. of 
river 8S. E. 
DS OS 


152.68 


27.76 


70.21 


76.60 
99.00 


131.90 


131.52 


2306 


W. 4857308 
S. of river 
N. W. 14, 23 48.75 
Except R. R. 

S. W. 4, 23 132.30 
Except R. R. 
S. E. 4, 23 
Except R. R. 
W.%,S. W. 
WY, 24 

S: frac. S. HE: 
iy, 22 

N. of river 

S. of canal, 
oat 

S. frac. of 

N. %, 21 

S. W. frac. 
yy, 21 

Frac. S. of 
river S. E. 
Y4, 21 


152.68 


27.76 


70.21 


76.60 
99.00 


131.90 


131.52 


440 





1891. 


Assessed Taxes 


Value. Paid. 
care ghee 22.54 
as 84.52 
rare 304.24 

(27.66-a) 
erin 163.38 
ee es 13:38 
800.00 30.24 
1,617.00 42.55 
2,154.00 56.66 
2,154.00 56.66 
1894. 
887.00 40.21 
1,822.00 66.17 
2,406.00 87.35 
2,406.00 87.35 





1892. 
Assessed Taxes 


Value. Paid. 
825.00 33.68 
1,697.00 62.47 
2,238.00 §2.38 
2,238.00 82.38 
1895. 
Saree ceeo 21.30 
Apis Ocak 79.74 
Sp eel? 286.99 
Mein g sy: a bs 
Be jtipete 15.07 
887.00 36.93 
1,822.00 53.42 
2,406.00 70.52 
2,406.00 70.52 


1893. 

Assessed Taxes 
Value. Paid. 

905.00 36.12 
1,859.00 54.69 
2,454.00 72.17 
2,454.00 oe 

1896. 
318.00 34.29 
‘1,191.00 128.41 
4,287.00 462.16 
2,302.00 248.19 
397.00 25.99 
826.00 48.68 
1,697.00 75.55 
2,240.00 99.69 
2,240.00 99.69 








44] 








2307 
1897. 1898. 

Assessed Taxes Assessed Taxes 
Deseription. <Aeres. Value. Paid. Value. Paid. 
W. 48.75 a 
S. of river 
N. W. 4, BoM Eae. to 326.00 27.70 324.00 31.86 
Except R. R. 
S. W. 4, Use SPS U 1,222.00 103.77 1,215.00 119.46 
Except R. R. 
S. E. 4, Dame Lo2.08 4,400.00 Die O 4,374.00 429.99 
Exeept R. R. 
W. %4,S. W. 
4, 24 27.76 2,363.00 200.64 2,349.00 220.92 
eae a: ee lO 
¥,, 22 70.21 407.00 18.82 405.00 23.83 
N. of river 
S. of canal 
21 76.60 832.00 47.29 802.00 57.61 
S. frae. of 
N, %, 21 99.00 1,707.00 70.18 1,636.00 89.67 
S. W. frac. 
4, Pal 131.90 2,292.00 92.56 2,171.00 118.99 
Frae. 8S. of 
river S. E. 
4, Pal 131.52 2,252.00 92.56 2,171.00 118.99 
2308 

1900. 1901. 

W. 48.75 a 
S. of river 
NoeW. y, COASTS 360.00 26.00 360.00 29.60 
Except R. R. 
S. W. 14, 23 132.30 1,350.00 97.38 1,350.00 110.98 
Except R. R. 
S. E. 4, Jan el52.68 4,860.00 350.42 4,860.00 399.50 
Except R. R. 
W. 4, S. W. (27.66-a) (27.66-a) 
4, 24 27.76 2,700.00 194.67 2,700.00 221.94 
S. trac. 8. E. 70.21 450.00 14.98 450.00 19.95 
N. of river 
S. of canal, 
aL 76.60 632.00 38.32 749.00 40.34 
S. frac. of 
N. 1%, 21 99.00 802.00 32.18 950.00 3.05 
S. W. frac. 
4, 21 131.90 1,061.00 42.57 1,258.00 50.20 
Frac. S. of 
river S. E. 
%, 21 Tbs ihe 1,061.00 42.57 1,258.00 50.20 


1899. 
Assessed Taxes 
Value. Paid. 
349.00 27.84 
1,310.00 104.43 
4,714.00 375.73 
2,619.00 208.76 
437.00 18.99 
757.00 44.31 
960.00 41.01 
1,271.00 54.30 
1,271.00 54.30 
1902. 
360.00 PAP af (ine 
1,350.00 103.96 
4,860.00 374.22 
(24.25-a) 
2,700.00 207.90 
450.00 20.94 
780.00 42.75 
990.00 47.34 
1,310.00 62.62 
1,310.00 62.62 


2309 











Description. Acres. 
W. 48.75 a 

S. of river 

N. W. 4, 23 48.75 
Except R. R. 

S. W. 14, 23 132.30 
Except R. R. 
S. EB. 44, 23 
Except R. R. 
W. 14, S. W. 
WY, 24 

S. trac. 8. E. 
FA OY 

N. of river 
S. of canal, 
21 76.60 
S. frac. of 
N, %, 21 
So enrac: 
Yy, 21 
Frac. S. of 
river, S. E. 
YY, 21 


152.68 


27.76 


70.21 


99.00 


131.90 


131.52 


2310 


W. 48.75 a 

S. of river 
N. W. 14, 23 
Except R. R. 
DS." Weg, eo 
Except R. R. 
S. E. \4, 23 
Except R. R. 
W. 4, S. W. 
y4, 24 
S.ffrac. 5S. 2 
Vy, 22 

N. of river 

S. of canal, 
21 76.60 
S. frac. of 
N. 4, 21 
S. W. frac. 
Yy, 21 
Frac. S. of 
river, S. E. 
WY, 21 


48.75 


132.30 


152.68 


27.76 


70.21 


99.00 


131.90 


131.52 


1903. 


Assessed Taxes 
Value. Paid. 


eee ees 
oe ew oe 


(eq! bm, 6. © 


eee eee 


564.00 39.59 


732.00 40.71 


976.00 54.27 


976.00 54.27 


1906. 


361.00 28.84 


1,354.00 108.07 


5,073.00 404.85 


2,707.00 216.04 


451.00 20.63 


564.00 37.51 


732.00 31.77 


976.00 42.36 


976.00 42.36 





1904. 
Assessed Taxes 


Value. Paid. 
361.00 33.26 
1,354.00 124.72 
5,073.00 467.25 
2,707.00 249.34 
451.00 22.66 
564.00 38.08 
732.00 33.39 
976.00 44,51 
976.00 44.51 
1907. 

40.00 S215 
1,720.00 135.20 
5,080.00 399.29 
2,700.00 212.02 

450.00 21.56 
532.00 34.59 
693.00 eA 


922.00 41.78 


922.00 41.78 


1905. 
Assessed Taxes 


Value. Paid. 
361.00 34.08 

1,354.00 12777 

5,073.00 478.66 

2,707.00 255.44 
451.00 21.83 
564.00 38.92 
732.00 33.68 
976.00 44,90 
976.00 44,90 

1908. 

40.00 3.30 
1,720.00 141.57 
5,080.00 418.09 
2,700.00 222.21 

450.00 21.30 
532.00 33.85 
693.00 30.92 
922.00 41.14 
922.00 41.14 


443 











2311 
1909. 1910. 1911. 

Assessed ‘Taxes Assessed Taxes Assessed ‘Taxes 
Description. Acres. Value. Paid. Value. Paid. Value. Paid. 
W. 48.75 a 
S. of river 
N. W. 4, 23 48.75 67.00 3.47 67.00 eae 67.00 rye ike) 
Except R. R. 
S. W. 14, 23 132.30 2,867.00 147.39 2,867.00 141.09 2,825.00 149.61 
Except R. R. 
S. E. 4, 23 §©6©152.68 8,467.00 435.23 8,467.00 416.61 7,933.00 420.08 
Except R. R. 
W. 4, 8S. W. (24.25-a) (24.25-a) (24.25-a) 
Y4, 24 gyda) 4,500.00 231.30 4,500.00 221.40 4,295.00 226.38 
S. frac. S. E. 
4, 22 70.21 750.00 20.20 750.00 18.54 743.00 24.20 
N. of river 
S. of canal, 
21 76.60 887.00 34.93 887.00 B20Do 578.00 24.08 
S. frac. of 
N. 1, 21 99.00 1,155.00 31.61 1,155.00 28.50 743.00 25.80 
S. W. frae. 
4, 21 131.90 1,537.00 42.05 1,537.00 37.91 990.00 BL Poy’ 
Frac. S. of 
river, S. E. 
4, Pai | 131.50 1,537.00 42.05 1,537.00 37.91 990.00 34.37 








2312 With reference to the record as found in Volume 300, 
pages 520 to 540, inclusive, the defendant objects for the 
reason it is not one of the classes of instruments con- 
cerning which proof of loss can be made in Section 36 
of Chapter 30 of the Revised Statutes of Illinois. Also, 
that no proper foundation has been laid; that nothing 
contained in the offer, to wit: pages 520 to 540, inclusive, 
tends to lay any foundation for the Exhibit 1 which has 
heretofore been introduced in this case, for the reason 
that in Exhibit 1 Henry L. Young, James H. Young and 
Mason Young are described as trustees under the last 
will and testament of Henry Young, deceased, and in the 
order of appointment of these three gentlemen, as made 
in the Surrogate Court, Westchester County, New York, 
they are appointed ag the executors of the last will and 
testament, and that the paper offered does not tend tc 


444 


support or give authority to the persons named as trus 
tees of the last will and testament of Henry Young. There 
are some twenty pages of this exhibit. 

Objection overruled; defendant excepts. 


2313 Said exhibit, pages 520 to 540 of said miscellaneous 
records, Volume 300, was then read to the jury, as fol- 


lows: 
2314 Will of Westchester County 
Henry Young. | Surrogate Court. 


In the Matter of Proving the last Will and Testament 
and Codicil of Henry Young, deceased. 


Be it remembered that heretofore, to-wit, on the 23rd 
day of October in the year one thousand eight hundred 
and seventy four Mason Young, one of the executors 
named in the last Will and Testament of Henry Young 
late of the Town of Ossining, County of Westchester ap- 
peared in open court before the Surrogate of the West- 
chester and made application to have the said last Will 
and ‘Testament and Codicil which relates to both real 
and personal estate proved and on such application the 
Surrogate having ascertained by satisfactory evidence 
who were the widow, heirs at law and next of kin of the 
said testator, and their respective residences, did issue a 
citation in due form of law, directed to the said widow, 
heirs at law and next of kin by their respective names, 
stating their respective places of residence, requiring 
them to appear before said Surrogate at his office in the 
Town of Cortlandt in said County of Westchester on the 
31st day of October One thousand eight hundred and 
seventy-four to attend the probate of the said will and 
eodicil. 

And afterwards, to-wit, on the said 31st day of Octo- 
ber, 1874, satisfactory evidence, by affidavit, having been 
produced and presented to said Surrogate of the service 


445 


of the said citation in the mode prescribed by law, on all 
the parties named therein, and that none of said heirs 
at law and next kin were minors, and that the said execu- 
tor having attended in person and no one appearing’ to 
oppose the probate of said will and codicil, such proceed- 
ings were thereupon had afterwards that the Surrogate 
took the proof of said will and codicil hereinafter set 
forth upon this 31st day of October in the year One thou- 
sand eight hundred and seventy-four and he adjudged 
the said will and codicil to be a valid will and codicil of 
real estate and personal estate, and the proof thereof to 
be sufficient; which said last Will and Testament and 
Codicil and proofs are as follows, that is to say : 

The Last Will and Testament of Henry Young of 
Ossining Westchester County State of New York. 

I, Henry Young residing in Ossining in the County of 
Westchester and State of New York do make publish 
and declare this my last Will and Testament. 

First. I direct that my executors pay all my Just 
debts, and the expenses of my funeral out of my estate 
as soon as conveniently may be after my decease. 

2315 Second. I give devise and bequeath to my beloved wife 
Anne M. Young my county seat comprising my dwelling 
house with the lands farm and premises adjacent thereto, 
including the plot on the corner of the Post road and the 
road leading to said country seat in the Town of Ossin- 
ing in the County of Westchester and State of New York 
containing between fifty-five and sixty acres more or less. 
To have and to hold the same to her her heirs and as- 
signs forever and I also give and bequeath to my said 
wife all my household furniture beds bedding plate pic- 
tures printed books and engravings, horses carriages 
harness cattle farming utensils growing crops provisions 
and supplies for family use which shall be in or upon 
said country seat dwelling house and premises at the 


446 


time of my decease and in any other dwelling house 
stable and premises which shall be occupied or used as 
or for our residence and accommodation at or immedi- 
ately before the time of my decease. To have and to 
hold the same to her and her executors, adminstrators 
and assigns forever. 

Third. J give and bequeath to my said wife an annuity 
or annual! sum of twenty thousand dollars to be paid to 
her yearly and every year during her natural life in 
equal quarterly yearly payments from time of my dc- 
cease. 

Fourth. I give and bequeath to my niece Alby I’. Har- 

2316 rington, an annuity or yearly sum of five hundred dol- 
lars to be paid to her yearly and every year during her 
natural life in equal quarter yearly payments from the 
time of my decease. 

Fifth. I give and bequeath to my niece Isabella G. Hyde 
an annuity or yearly sum of five hundred dollars to be 
paid to her yearly and every year during her natural life 
in equal quarterly yearly payments from the time of 
my decease. 

Siath. To provide for the payment of each of the sev- 
eral annuities or yearly sums of money hereinbefore 
given and bequeathed it is my will and I do hereby devise — 
order and direct that my executors hereinafter named 
select take and set apart from and out of my estate such 
real property or such personal property money and se- 
curities for money, or both real and personal property, 
as in their judgment shal! be sufficient to produce an an- 
nual interest or income sufficient to pay and satisfy such 
annuity and in case they shall deem it necessary to change 
the investment of either such trust fund or any part 
thereof that they invest the same or the proceeds thereof 
from time to time in their own name as trustees, in bonds 
secured by mortgages upon productive real estate in the 


447 


City of New York or Brooklyn or in public stocks or 

9317 debt of the United States or of the State or City of New 
York keeping such fund separate from the other and with 
and out of the interest and income arising therefrom that 
they pay the said several annuities and yearly sums of 
money and each and every of them from time to time as 
they shall become due and payable until snch annuities 
respectively shall cease and if in any year the interest 
or income arising and realized from said securities money 
and property so set apart and held and retained for that 
purpose or from the securities and property in which the 
same shall be invested shall be insufficient I authorize 
them to supply such deficiency out of my residuary estate 
and if the same shall be more than sufficient to pay such 
annuities or yearly sums as shall remain and continue to 
be payable then it is my will and I devise, order and di- 
rect that the expense of said interest and income over 
and above the amount necessary to pay said annuities 
in any year be distributed and paid as hereinafter pro- 
vided for the distribution of surplus income of my re- 
siduary estate and that the said securities, money and 
property selected set apart and held as aforesaid to pro- 
vide for either of said annuities if so set apart and held, 
shall whenever such annuity shall have ceased to be pay- 
able be disposed of distributed and paid in like manner 
as provided hereinafter for distribution and payment of 

2318 the surplus income of my residuary estate and until 
property shall he set apart as herein authorized by my 
executors for each such fund, I direct that each such 
annuity for which no fund is set apart shall be a charge 
upon my whole estate. 

Seventh, All the rest residue and remainder of my 
estate real and personal property, rights of property of 
every kind and description whatsoever and wheresoever 
which I shall own or possess or to which I shall be enti- 


4 


448 


tled at the time of my death I give devise and bequeath 
to my sons Henry L. Young, James H. Young and Mason 
Young hereinafter also appointed the executors of this 
my will, the survivors and last survivor of them, his or 
their suecessors heirs and assigns, to have and to hold 
the same unto them my said sons Henry L. Young James 
H. Young and Mason Young the survivors and last sur- 
vivor of them and his or their successors heirs and as- 
signs as joint tenants and not as tenants in common for- 
ever upon trust nevertheless and to and for the uses 
and purposes following, that is to say, in trust to secure, 
take and hold the said rest residue and remainder of my 
estate property and rights of property and the proceeds 
of any portion thereof which may be sold during the nat- 
ural lives of my daughters Martha A Leavitt and Joseph- 
ine Y. Churchill and to longest liver of them with power 
2319 to invest the said personal property and every or any 
part thereof and also the proceeds of real property as 
the same may be realized from time to time, as may be 
necessary or expedient in their discretion, having always 
due regard to the security of the investment in bonds and 
mortgages upon productive real estate situated in cities 
of the United States containing by the census of the 
United States over one hundred thousand inhabitants or 
in public stocks or debt of the United States or of the 
State or City of New York or in such other securities or 
property including stock and bonds of incorporated com- 
pany as they may deem entirely safe to collect get in and 
receive the rents, interest, income dividends and profits 
arising or accruing from or upon such rest residue and 
remainder of my estate property and rights of property 
and the proceeds thereof and all bonds, mortgages stocks 
securities and property in which the same or any part 
thereof shall be at any time invested and the income aris- 
ing therefrom after paying all taxes and assessments of 


449 


every kind and description which may be levied or as- 
sessed upon any property belonging to my estate, or any 
part thereof, and all necessary and proper costs charges 
and expenses of or attending the care and management 
of my estate including such office rent and clerk hire as 
they may deem necessary and expenses of insuring’ 
against fire and of maintaining and keeping in thorough 
2320 repair all buildings belonging to my estate or in which 
my estate may have an interest and after making the pay- 
ments which my said executors and trustees are herein- 
after empowered to make, in their discretion to divide at 
the end of each year all of the net income from my estate 
in equal shares among my children who may be then 
surviving and the issues of any deceased child or chil- 
dren during their respective lives, such issue to take per 
stirpes and not per capita, and I further devise and 
direct that upon the death of the survivor of my said 
daughters Martha A Leavitt and Josephine Y Churchill, 
or upon the other determination of this trust the whole of 
my residuary estate real and persona! of every kind and 
description shall be divided by my said executors in equal 
shares among my children who may be then surviving and 
the issue of any deceased child or children such issue to 
take per stirpes and not per capita and I authorize my 
executors aforesaid to advance money from time to time 
to each of my said children and to the issue of any de- 
ceased child, such issue to take per stirpes and not per 
capita during each year such advances not to exceed to 
each child the sum of two thousand dollars in any one 
year, in anticipation of the division to be made at the 
end of the year, such advances not to bear interest. 
In the management of my estate I authorize and em- 
2521 power my executors out of any moneys in their hands 
to apply such sums as they in their discretion may deem 
advisable in putting in proper condition for the purposes 


450 


of sale my real estate or any part or parts thereof, but 
not for the erection of any buildings thereon except to 
replace buildings which may be destroyed, and for the 
care and protection of any property of the estate which 
in their judgment may be in any way jeopardized or im- 
perilled and as a large amount of my property is in 
railroad bonds, and other railroad securities I expressly 
authorize and empower my executors appointed by this 
my Will to apply any moneys in their hands whenever 
they shall deem it necessary in order to preserve, protect 
from sacrifice or make available any railroad bonds, or 
other railroad securities or property held by me in such 
manner as they may judge expedient to secure or pro- 
tect from sacrifice or make available such railroad bonds 
securities or railroad property and to enter into any 
agreement in relation thereto for the reorganization of 
railroad companies whose bonds, securities or stocks they 
may hold as such exeeutors and to enter into any agree- 
ment which they may consider advantageous for the sub- 
stitution of other bonds stocks or securities for those held 
by me or by my estate, and if they shall deem it neces- 
sarv I authorize them to borrow moneys for any purpose 

2322 above mentioned and all such payments of money or 
money advances shall be made if possible out of the in- 
come of my estate before any division of income shall 
take place beyond the sum of two thousand dollars here- 
inbefore authorized to be advanced annually to each of 
my children, and if such advances cannot be made out 
of the income then they shall apply so much of the prin- 
cipal of my estate thereto as may be necessary. 

I have heretofore given to and distributed among my 
children from time to time portions of my property 
valued by me at the time of such distribution, and amount- 
ing upon such valuation at the date of this my will as 
follows: Tio my son Henry L. Young, $201533.93; To 


451 


my daughter Mary C. Barnes, $200495.17, To my son 
James H. Young $201600.00, To my daughter Martha A. 
Leavitt $200882.77, to my son Mason Young, $206576.30, 
To my daughter Alice Eaton $201119.31, To my daughter 
Josephine Churchill $200411.14, making an aggregate of 
gone million four hundred and twelve thousand five hun- 
dred and fifty-eight dollars and sixty-two cents, and I 
direct that my executors and trustees herein named in 
making the division of the principal of my residuary es- 
tate as herein directed shall make such division so that 
the amounts received by each child or the representatives 
of each child per stirpes added to the sums previously 
distributed by me as hereinbefore stated to each child 
2323 shall be equal. The accounts of moneys distributed to 
my children are kept in a ledger in my own handwriting 
marked ledger D and any amount hereinafter advanced 
or paid by me to either of my children and debited in 
such ledger to each child shall be considered an advanced 
payment or distribution upon account of amounts to be 
received by such child from my estate under this my will 
but no interest shall be charged upon any such advance. 
In the event that my daughters Martha A. Leavitt and 
Josephine Y Churchill, or either of them, shall live for 
ten years from the date of my death I direct that the 
division of my residuary estate among my children here- 
inbefore provided shall be made at the expiration of such 
ten years from my death notwithstanding my said 
daughters or either of them shall then be. surviving such 
division to be then made among my children who may 
be then surviving and the issue of any deceased child or 
children in equal shares such issue to take per stirpes 
and not per capita. 
I give to my executors and trustees full power and au- 
thority to sell either at public er private sale at such time 
or times, for such prices and upon such terms as to credit 


452 


as they may deem advisable all or any portion of my 
real estate and J] give them power to mortgage my real 

2324 estate or any portion thereof as security for any moneys 
which they may borrow for the purposes hereinbefore 
named for which authority to borrow money is given and 
to enter into agreements for the actual partition of any 
lands or interest in lands or under rights which I may 
hold in common with any other person or persons and to 
carry such partition or partitions into effect, to lease any 
or all of my real estate at such rents and for such terms 
of years as they may deem advisable and I give them 
full power to make execute acknowledge and deliver all 
such deeds, mortgages leases and other instruments as 
may be requisite or necessary to enable them to execute 
the powers or any of them hereby conferred upon them, 
and I further authorize them to compromise settle and 
adjust upon terms which may seem to them equitable any 
debts due to my estate and full releases and acquittances 
to give therefor. 

In ease it shall at any time be deemed advisable by my 
executors for the purpose of straightening boundaries or 
obtaining the whole of blocks or parcels of land of which 
parts may belong to my estate, or of obtaining direct 
access to navigable waters or to secure water fronts and 
rights necessary to make any of my property available 
for manufacturing or commercial purposes to purchase 
lands and premises lying adjacent to any improved por- 
tion of my estate I authorize said executors from time to 

2325 time to make such purchases and to pay therefor out of 
the property hereby given to them in trust and to exer- 
cise as to lands so purchased all the powers given to 
them herein with reference to my estate. 

All powers granted in this will to the executors and 
trustees herein named shall be deemed and taken to be 
exercised by and in the discretion of the survivors and 


453 


last survivor of such executors and trustees in like man- 
ner as if in each case the said powers had been given 
and the said discretion had been directed to be exercised 
by the survivors and last survivor of them. 

I nominate and appoint my sons Henry L. Young, 
James H. Young and Mason Young executors of this my 
last will and testament and I direct that neither of said 
executors shall be required to give bonds or other secur- 
ity in any state as executor or trustee under this my will 
nor shall either be lable for the acts of the other, 

I hereby revoke all former and other wills by me made. 

In witness whereof I have hereunto set my hand and 
seal this 10th day of August in the year One thousand 
eight hundred and seventy-four. 

Henry Youne [t.s.] 

Signed sealed published and declared by the said Henry 
Young to be his last will and testament in the presence 
of us and of each of us who in the presence of each other 
and of the testator and at his request have signed our 
names as witnesses. 

EKvuene Smith No 23 Hast 44th St New York City 

THEopoRE RK Sunar No 314 West 28th St New York City 

JOHN Ki Curran No 19 East 46th St New York City 


I Henry Young do make publish and declare this Codicil 
to my last Will and Testament. 

I give to the Presbyterian Church of Sing Sing of 
which the Reverend Wilson Phraner is pastor the note of 
said church for five thousand dollars held by me, and the 
sum of five thousand dollars which last named amount I 
authorize and direct the executors and trustees named in 
my will to pay to the proper officer of said church at such 
times during the continuance of the trust created by said 
will and in such amounts as they may deem most con- 


venient. 
Henry Youne [tu s.] 


454: 


Signed published and declared by the said Henry 
Young as and for Codicil to his last will and testament 
this 17th day of October, A. D. 1874 in the presence of 
us who in his presence and in the presence of each other 
and at his request have hereunto subscribed our names 


as witnesses. 
Henry S Leavirr New York City 


R. C. Courcuitt New York City 


Westchester County, Surrogate Court. 
To Owrn T. Coortn, 
Surrogate of the County of Westchester. 


The petition of Mason Young of the City of New York 
in said county, respectfully showeth, that Henry Young, 
late of the Town of Ossining in said Westchester County, 
departed this life in said Westchester County on the 21st 
day of October in the year one thousand eight hundred and 
seventy-four having previously, as your petition is in- 
formed and believés, duly made and executed his last will 
and testament and codicil; that your petitioner is one of 
the executors named in the said will, that the said deceased 
was a citizen of the United States; that he was at or im- 
mediately previous to his death an inhabitant of the 
County of Westchester; and that his last will and testa- 
ment and codicil relates to both real and personal estate, 
the value of which in the opinion of your petition will not 
exceed the sum of two million dollars. 


Your petition further shows that the said Henry Young 
left him surviving Anne Mason Young, his widow, who 
resides at the said Town of Ossining, and James H. 
Young, Mary L., wife of Henry W. Barnes, Martha A., 
wife of Henry S. Leavitt, Josephine Y., wife of Richard 
C. Churchill, and your petitioner severally residing at the 
City of New York, Henry L. Young residing in the City 
of Pokeepsie, Dutchess County, N. Y., and Alice, wife of 


455 


D. Cady Eaton, who resides at the City of New Haven, 
Conn., his only children, heirs at law and next of kin, 
all of whom are of full age. 

Your petitioner further shows, that he is informed and 
believes that the Surrogate of the County of Westchester 
has jurisdiction to take the proof of the said last will and 
testament, and over the executors thereof and the power 
of granting letters testamentary thereof, with all powers 
incidental thereto, and that he desires that such proof 
should be taken and such letters granted, and that such 
further or other proceedings in the premises should be 
had as may be legal and proper. 

Your petitioner therefore prays that a citation may 
issue out of and under the seal of this court to be directed 
to the proper persons pursuant to the statute in such case 
made and provided, requiring them and each of them at 
such time and place as shall be in said citation mentioned 
to appear and attend the probate of said will and last 
testament and codicil and that such further or other pro- 
ceedings in the premises should be duly had as may be 
requisite to the proving and recording of the said last 
will and testament and the granting probate and letters 
testamentary thereof. And your petitioner will ever pray, 
ete. 

Dated this twenty-third day of October, 1874. 

Mason Youna. 
State oF New York, 
County oF WESTCHESTER. 

I, Mason Young, the petitioner named in the foregoing 
petition, being duly sworn say that I have heard the fore- 
going petition to which I have subscribed my name read 
and know the contents thereof, and the same are true of 
my own knowledge, except as to such matters as are stated 
therein upon my information and belief, and as to those 


matters I believe it to be true. 
Mason Youna. 


456 


Sworn and subscribed to before me this twenty-third 


day of October, 1874. 
Owen T. Corry, 


Surrogate. 


At a surrogate’s court, held in and for the County of 
Westchester at the surrogate’s office in the town of White 
Plains, on the twenty-third day of October in the year one 
thousand eight hundred and seventy-four,— 


Present: Owen T. Coffin, Surrogate. 


In the matter of proving the last will and testament 
and codicil thereto of Henry Young deceased. 


On reading and filing the petition of Mason Young, 
executor, &, propounding the last will and testament and 
eodicil of Henry Young, late of the Town of Ossining in 
the County of Westchester, deceased, for probate. 


It is ordered that a citation issue to the proper persons, 
pursuant to the prayer of the said petition, requiring 
them to appear in this court on the thirty-first day of 
October, 1874, at 9 o’clock in the forenoon of that day, at 
the surrogate’s office in the Town of Cortlandt, to attend 
the probate of the said will and codicil. 


Owen T. Corry, 
Surrogate. 


457 


The People of the State of New York 

By the grace of God, free and independent 
To 

Anne Mason Young, residing at the Town of Ossining, 
Westchester County, N. Y. 

James H. Young, Mary C. Barnes, Martha A. Leavitt 
and Josephine Y. Churchill, severally residing at the City 
of New York. 

Henry L. Young, residing at the City of Pokeepsie, 
Dutchess County, N. Y. 

Alice Eaton, residing at New Haven, Connecticut. 

Send Greeting. 


Whereas, Mason Young of the City of New York has 
lately applied to our surrogate of the County of West- 
chester, to have a certain instrument in writing, bearing 
date the 10th day of August, 1874, and the 17th day of 
October, 1874, respectively purporting to dispose of both 
real and personal estate, duly proved as the last will and 
testament and codicil of Henry Young, late of the Town 
of Ossining in said county, deceased, in pursuance of the 
statute in such case made and provided; you and each of 
you are cited and required personally to be and appear 
before our said surrogate at his office in the Town of 
Cortlandt in the said county on the thirty-first day of Oc- 
tober, 1874, at nine o’clock in the forenoon of that day, 
then and there to attend to the probate of said last will 
and testament and codicil. | 

Witness Owen T. Coffin, surrogate of said county at the 
Town of White Plains, the 23rd day of October in the year 
of our Lord one thousand eight hundred and seventy-four. 

W. M. SHINNER, 
Clerk to the Surrogate’s Court. 
Cr-ey.,) 

We admit due personal service upon us this day of the 

within citation and we consent that the probate of the 


458 


will and codicil therein mentioned be proceeded with at 
the time and place in said citation named. 
Dated Ossining, October 23, 1874. 


ANNE M. Young, 

Henry L. Youne, 

Mary C. Barns, 
MartHa A. Leavitt, 
Auice Youne Harton, 
JOSEPHINE Y. CHURCHILL, 


James H, Youna. 
Signed in presence of 


JoHN GIBNEY. 


Strate oF New York, : 
County or WESTCHESTER, 


On the 23rd day of October in the year one thousand 
eight hundred and seventy-four before me personally ap- 
peared Anne M. Young, Henry L. Young, Mary C. Barnes, 
Martha A. Leavitt, Alice Young Eaton and Josephine Y. 
Churchill and on the 26th day in the month and year 
aforesaid before me also personally appeared James H. 
Young, all of whom are known to me to be the individuals 
described in the within citation, and in the foregoing in- 
strument and who executed said instrument and they then 
severally acknowledged, that they executed said instru- 


ment. 
JOHN GIBNEY, 


Notary Public Westchester County. 
Westchester County. Surrogate’s Court. 


In the matter of proving the last will and testament of 
Henry Young, deceased. 


459 


Srate or New York, 5 
County or WESTCHESTER, 


Theodore R. Shear of the City of New York, being duly 
sworn and examined before the surrogate of said County 
of Westchester, doth depose and say that he was well 
acquainted with Henry Young, late of the Town of Os- 
sining in said County of Westchester, deceased, that he 
was present as a witness and did see the said Henry 
Young, deceased, subscribe his name at the end of the 
instrument in writing now produced, as shown to this 
deponent, bearing date the 10th day of August in the year 
of our Lord one thousand eight hundred and seventy-four, 
purporting to be the last will and testament of the said 
Henry Young, deceased. That the said Henry Young at 
the time of making the said subscription declared the said 
instrument to be his last will and testament, and requested 
this deponent to sign his name as a witness thereto. 
Thereupon this deponent did accordingly sign his name 
as a witness at the end of the said instrument in the pres- 
ence of the said Henry Young, deceased, and in the pres- 
ence of HKugene Smith and John EH. Curran, severally of 
the City of New York, the other subscribing witnesses to 
the said instrument. This deponent further sayeth that 
the said Henry Young, deceased, at the time he so ex- 
ecuted the said instrument was a citizen of the United 
States, of full age, sound mind and memory in all respects 
competent to devise real estate and not under restraint; 
and that this deponent saw the said Hugene Smith and 
John HK. Curran sign the said instrument at the end there- 
of as witnesses thereto in the presence of said Henry 
Young, deceased, and at his request. 


THEODORE R. SHEAR. 


460 


Sworn, examined and subscribed before me, this 31st 


day of October, A. D. 1874. 
Owen T. CoFFIn, 


Surrogate. 


Westchester County. - Surrogate’s Court. 


In the matter of proving the last will and testament of 
Henry Young, deceased. 


Strate oF New York, x 
County oF WESTCHESTER, 


John E. Curran of the City of New York, being duly 
sworn and examined before the surrogate of said County 
of Westchester, doth depose and say that he was well 
acquainted with Henry Young, late of the Town of Os- 
sining,, in said County of Westchester, deceased. That he 
was present as a witness and did see the said Henry 
Young, deceased, subscribe his name at the end of the 
instrument in writing now produced and shown to this 
deponent, bearing date the 10th day of August in the year 
of our Lord one thousand eight hundred and seventy-four, 
purporting to be the last will and testament of the said 
Henry Young, deceased. That the said Henry Young, at 
the time of making the said subscription, declared the 
said instrument to be his last will and testament and re- 
quested this deponent to sign his name as a witness 
thereto. 

Thereupon this deponent did accordingly sign his name 
as a witness at the end of the said instrument in the pres- 
ence of the said Henry Young, deceased, and in the pres- 
ence of HKugene Smith and Theodore R. Shear of the City 
of New York, the other subscribing witnesses to the said 
instrument. This deponent further sayeth that the said 
Henry Young, deceased, at the time he so executed the 
said instrument was a citizen of the United States, of full 


461 


age, sound mind and memory in all respects competent to 
devise real estate and not under restraint and that this 
deponent saw the said Kugene Smith and Theodore R. 
Shear sign the said instrument at the end thereof as wit- 
nesses thereto in the presence of said Henry Young, de- 


ceased, and at his request. 
JOHN EH. Curran. 


Sworn, examined and subseribed before me this 31st day 


of October, A. D. 1874. 
Owen T. CoFrrin, 


Surrogate. 


Westchester County. Surrogate’s Court. 


In the matter of proving of the last will and testament 
of Henry Young, deceased. 


Strate oF New York, 
Ss. 
County or WESTCHESTER, | 


Kugene Smith of. the City of New York being duly 
sworn and examined before the surrogate of said County 
of Westchester, doth depose and say that he is well ac- 
quainted with Henry Young, late of the Town of Ossining 
in said County of Westchester, deceased. That he was 
present as a witness and did see the said Henry Young, 
deceased, subscribe his name at the end of the instrument 
in writing now produced and shown to this deponent 
bearing date the 10th day of August in the year of our 
Lord one thousand eight hundred and seventy-four, pur- 
porting to be the last will and testament of the said Henry 
Young, deceased. That the said Henry Young at the time 
of making the said subscription declared the said instru- 
ment to be his last will and testament and requested this 
deponent to sign his name as a witness thereto. There- 
upon this deponent did accordingly sign his name as a 


462 


witness at the end of the said instrument in the presence 
of the said Henry Young, deceased, and in the presence 
of Theodore R. Shear and John EK. Curran severally of 
the City of New York, the other subscribing witnesses to 
the said instrument. This deponent further sayeth that 
the said Henry Young, deceased, at the time he so ex- 
ecuted the said instrument was a citizen of the United 
States, of full age, sound mind and memory in all respect 
competent to devise real estate and not under restraint 
and that this deponent saw the said Theodore R. Shear 
and John E. Curran sign the said instrument at the end 
thereof as witnesses thereto in the presence of said Henry 


Young, deceased, and at his request. 
KuGENE SMITH. 


Sworn, examined and subscribed before me this 31st 


day of October, A. D. 1874. 
Owen T. Corry, 


Surrogate. 


Westchester County, Surrogate’s Court. 


In the matter of proving the codicil to the last will and 
testament of Henry Young, deceased. 


Strate oF New York, 5 
County or WESTCHESTER, 


Richard C. Churchill, of the City of New York, being 
duly sworn and examined before the surrogate of said 
Westchester County, doth depose and say that he was 
well acquainted with Henry Young, late of the Town of 
Ossining in said Westchester County, deceased. That he 
was present as a witness and did see the said Henry 
Young, deceased, subscribe his name at the end of the 
instrument in writing now produced and shown to this 
deponent bearing date the 17th day of October in the year 
of our Lord one thousand eight hundred and seventy-four, 


463 


purporting to be a codicil to the last will and testament of 
the said Henry Young, deceased. That the said Henry 
Young at the time of making the said subscription, de- 
clared the said instrument to be a codicil to his last will 
and testament and requested this deponent to sign his 
name as a witness thereto. Thereupon this deponent did 
accordingly sign his name as a witness at the end of the 
said instrument in the presence of the said Henry Young, 
deceased, and in the presence of Henry L. Leavitt of the 
City of New York, the other subscribing witness to the 
said instrument. This deponent further sayeth that the 
said Henry Young, deceased, at the time he so executed 
the said instrument was a citizen of the United States, of 
full age, sound mind and memory, in all respects com- 
petent to devise real estate and not under restraint and 
that this deponent saw the said Henry L. Leavitt sign the 
said instrument at the end thereof as a witness thereto 
in the presence of said Henry Young, deceased, and at 
his request. 
RicHarp ©, CHURCHILL. 


Sworn, examined and subscribed before me this 31st 


day of October, A. D. 1874. 
Owen T. Corry, 


Surrogate. 
Westchester County, Surrogate’s Court. | 
In the matter of proving the codicil to the last will and 
testament of Henry Young, deceased. 


State oF New York, : 
County oF WESTCHESTER, 


Henry S. Leavitt of the City of New York, being duly 
sworn and examined before the surrogate of said County 
of Westchester, doth depose and say that he was well 
acquainted with Henry Young, late of the Town of Os- 
sining, in said County of Westchester, deceased. That 


464. 


he was present as a witness and did see the said Henry 
Young, deceased, subscribe his name at the end of the in- 
strument in writing now produced and shown to this 
deponent, bearing date the 17th day of October in the 
year of our Lord one thousand eight hundred and seventy- 
four, purporting to be a codicil to the last will and testa- 
ment of the said Henry Young, deceased. That the said 
Henry Young at the time of making the said subscription 
declared the said instrument to be a codicil to his last will 
and testament and requested this deponent to sign his 
name as a witness thereto. Thereupon this deponent did 
accordingly sign his name as a witness at the end of the 
said instrument in the presence of the said Henry Young, 
deceased, and in the presence of Richard C. Churchill of 
the City of New York, the other subscribing witness to the 
said instrument. This deponent further sayeth that the 
said Henry Young, deceased, at the time he so executed 
the said instrument was a citizen of the United States, of 
full age, sound mind and memory, in all respects comn- 
petent to devise real estate and not under restraint and 
that this deponent saw the said Richard Churchill sign 
the said instrument at the end thereof as a witness thereto 
in the presence of said Herny Young, deceased, and at his 
request. 


Sworn, examined and subscribed before me this 31st day 


of October, A. D. 1874. 
Owen T. CoFFrn, 


Surrogate. 


At a surrogate’s court held in and for the County of 
Westchester at the surrogate’s office in the Town of Court- 
land on the 31st day of October, A. D. 1874. 


Present 
Owen T. Corrin, 


Surrogate. 


465 


In the matter of proving the last will and testament and 
codicil of Henry Young, deceased. 


The proofs in this matter being deemed sufficient it is 
ordered that the said will and codicil be admitted to 
probate and that the usual decretal order be entered. 

: Owen T. Corrin, 
Surrogate. 


At a surrogate’s court held in and for the County of 
Westchester at the surrogate’s office in the Town of 
Courtland on the 31st day of October, 1874. 


Present 
Owen T. Corrtn, 


Surrogate. 


In the matter of proving the last will and testament and 
codicil of Henry Young, deceased. 


Satisfactory proof having been made of the due service 
of the citation heretofore issued in this matter requiring 
the proper persons to appear in this court on the 31st 
day of October, 1874, and attend the probate of the last 
will and testament and codicil of Henry Young, late of 
the Town of Ossining, deceased, and Mason Young, an 
executor named in the said last will and testament, having 
appeared in person in support of the proof of the same, 
and no other parties or persons having appeared in the 
said matter and after hearing the proofs and allegations 
of the said executor and due deliberation being thereon 
had, on motion of said executor it is adjudged and de- 
creed, and the surrogate of the County of Westchester, by 
virtue of the power and authority in him vested doth 
adjudge and decree that the said last will and testament 
and codicil was duly executed, that the same is genuine 
and valid, and that the said Henry Young at the time of 


466 


executing the same was in all respects competent to de- 
vise real estate and not under restraint. 

And this court doth further order and decree that the 
said last will and testament and codicil, and the proofs 
and examinations taken in respect to the same be recorded 
and that the said last will and testament and codicil be 
admitted to probate and that the same be and hereby is 
established as a will and codicil of real and personal 


estate. 
Owern T’. CorFrin, 


Surrogate. 


Westchester County, Surrogate’s Court. 


In the matter of proving the last will and testament and 
codicil of Henry Young, deceased. 


WESTCHESTER COUNTY: SS. 


I, Henry L. Young, an executor named in the last will 
and testament of Henry Young, late of the Town of Os- 
sining in the said county, deceased, being duly sworn, do 
depose and declare that I reside in the City of Pokeeme, 
in the County of Dutchess, and that I will well, faithfully 
and honestly discharge the duties of executor of the said 
last will and testament according to law. | 

Henry L. Youne. 


Sworn and subscribed before me this 31st day of Oc- 
tober, A. D. 1874. 
Owen T. Corrin, 


Surrogate. 
Westchester County. Surrogate’s Court. 


In the matter of proving the last will and testament and 
codicil of Henry Young, deceased. 


467 


WESTCHESTER COUNTY: SS. 


I, James H. Young, an executor named in the last will 
and testament of Henry Young, late of the Town of Os- 
sining in the said county, deceased, being duly sworn, do 
depose and declare that I reside in the City of New York, 
in the County of New York, and that I will well, faithfully 
and honestly discharge the duties of executor of the said 
last will and testament according to law . 

Mason Youne. 


Sworn and subscribed before me this 31st day of Oc- 


tober, A. D. 1874. 
Owen T. CoFFIn, 


Surrogate. 


At a surrogate’s court held in and for the County of 
Westchester, at the surrogate’s office, in the Town of 
Courtlandt, on the thirty-first day. of October, A. D. 1874. 


Present 
Owen T. CoFFIn, 


Surrogate. 


In the matter of proving the last will and testament and 
codicil of Henry Young, deceased. 


At the time and place aforesaid Henry L. Young, James 
H. Young and Mason Young, the executors named in the 
last will and testament of Henry Young, late of the Town 
of Ossining in said county, deceased, appeared in open 
court and took the oath required by law to qualify them 
as such executors, whereupon it was ordered that letters 
testamentary of the estate of the said deceased be and 
they are hereby granted to Henry L. Young, James H. 
Young and Mason Young, executors as aforesaid. 

Owen T. Corrin, 
Surrogate, 


468 


The people of the State of New York: 
By the grace of God, free and independent. 


To all to whom these presents shall come or may 
concern send greeting: 


Know ye, That at the County of Westchester on the 
thirty-first day of October, in the year of our Lord one 
thousand eight hundred and seventy-four, before Owen T’. 
Coffin, surrogate of our said county, the last will and 
testament and codicil thereto of Henry Young, late of the 
Town of Ossining, said county, deceased, was proved and 
is now approved and allowed by us, and the said Henry 
Young, having been at or immediately previous to his 
death an inhabitant of the County of Westchester, by. 
reason whereof the proving and registering of said will 
and codicil and the granting administration of all and 
singular the goods, chattels and credits of the said tes- 
tator, and also the auditing allowing and final discharging 
the account thereof, doth belong unto us, the administra- 
tion of all and singular the goods, chattels and credits of 
the said deceased, and any way concerning his will and 
codicil is granted unto Mason Young, James H. Young 
and Henry L. Young, the executors in the said will named, 
they being first duly sworn faithfully and honestly to 
discharge the duties of such executors according to law. 

In testimony whereof we have caused the seal of office 
of our said surrogate to be hereunto annexed. 

Witness Owen T. Coffin, surrogate of our said county, 
the 2nd day of November, in the year of our Lord one 
thousand eight hundred and seventy-four. 


Owen T. Corry, 


(L.8.) Surrogate. 


469 


WESTCHESTER COUNTY, Hy 
SURROGATE’S OFFICE, 


Recorded the within letters testamentary in Liber K. 
of Letters testamentary, page 498, the 2nd day of No- 


vember, 1874. 
W. M. SKINNER, 


Clerk Surrogate Court. 


Strate oF New York, 
County oF WESTCHESTER, } SS. 
SuRROGATE’S OFFICE, 


I, William M. Skinner, clerk to the Surrogate’s Court 
of said county, do hereby certify that I have compared the 
foregoing copy of preamble will and testament and codicil 
thereto petition order for citation and the citation issued 
on such order the proof of service thereof depositions of 
witnesses to will and codicil order of probate oaths of 
executors order for letters testamentary and the letters 
testamentary issued thereunder with the original record 
thereof now remaining in this office and have found the 
same to be a correct transcript therefrom, and of the 
whole of such original. 


In testimony whereof, I have hereunto set my hand and 
affixed the seal of office of the surrogate of said county 
this 12th day of May in the year of our Lord one thousand 


eight hundred and seventy-seven. 
Wo. M. SKINNER. 


[SEAL. | Clerk to the Surrogate’s Court. 
Stare or New York, 
Country or Westcuester, § © 


I, Owen T. Coffin, surrogate of said county and presid- 
_ ing magistrate of the surrogate’s court, do hereby certify 
that the foregoing authentication and attestation of the 
preamble, will and testament and codicil thereto petition 


470 


order for citation and the citation issued on such order, 
the proof of service thereof, depositions of witnesses to 
will and codicil, order of probate, oaths of executors, 
order for letters testamentary and the letters testamen- 
tary issued on such order is on due form. That the said 
copies of said will and codicil are certified, exemplified 
and attested to be true copies in the manner in which 
copies of such instruments are usually exemplified and 
attested in the State of New York, and that the said 
copies would be received in evidence in the courts of the 
said State of New York and that William M. Skinner is 
the clerk of the surrogate’s court of Westchester County 
and his signature to the certificate is genuine. 


In testimony whereof I have hereunto set my hand and 
affixed my official seal this twelfth day of May, A. D. 1877. 


Owen T. Corry, 
[ SEAL. | Surrogate. 


Filed June 23, 1893, at 14 o’clock P. m. 
2346-2347 Extract from last will and testament. 


2349 Deposition of Wiuu1am A. Vat offered by the plaintiff: 


Direct Examination read by Mr. Butters. 


My name is William A. Vail. I live at Lockport, Will 
County, Illinois. I am in the employ of the Sanitary Dis- 
trict of Chicago. I am termed on the pay roll as an 
operator. My duties are performed at the controlling 
works at Lockport. There are other employes at the con- 
trolling works besides myself. I have been operator at 

2350 the controlling works since October 1, 1903. I was for 
2351 a year and a half a policeman for the Sanitary District. 
My duties are from seven in the morning till three in the 
afternoon, every day in the week. I read the gauge every 


471 


2352 half hour. I have seen the water above the crest of the 

2358 dam at the controlling works at Lockport but never to 

2360 exceed 3.2 feet. I have seen the gates down seven feet 
for a very short time, which meant a gauge reading of 

2361 seven feet. I have lowered it that way for visitors and 
then brought it right up again. 


2362 Deposition of Isham RanpotrH offered by the plaintiff: 


Direct Exanunation read by Mr. Butters. 


My name is Isham Randolph. I am fifty-seven years of 
age. I live in Riverside, Cook County, Illinois. My pro- 
fession is civil engineer. In that profession since 1868. 
I am chief engineer for the Sanitary District of Chicago; 
have been for twelve years. I think the district was or- 
ganized in 1899, in November or December of that year. 
I am acquainted with the scope embodied in that district. 

2363 Lake Michigan is the eastern boundary of the Sanitary 
District. Highty-seventh street is the south boundary. 
2364 The west boundary is a very irregular one. The north 
limit of the City of Chicago is the northern boundary of 
the original district. 
2366 I have lived in the city and its immediate suburbs for 
twenty-five years. The Chicago River has four branches. 
2369 Each, in a state of nature, emptied into Lake Michigan. 
My acquaintance with them extends over thirty-three 
2370 years. The levels of the original Sanitary District were 
run from the bench mark known as the Chicago City 
datum. My own knowledge of its use extends back to 
2371 1880. Chicago City datum has been used since 1836. Chi- 
cago City datum is a plane of reference assumed by the 
builders of the [llinois and Michigan Canal. It so hap- 
2374 pened that it coincided with the low water of 1847. I 
have never taken the elevations of the surface of the water 


472 


at Lake Joliet with reference to Chicago City datum. I 
have seen the report of elevations several times. It has 
been ascertained under my direction. Speaking from 
recollection, the elevation is about seventy-two feet below 
2375 Chicago datum. As chief engineer, I had general super- 
vision of the engineering department for the Sanitary 
District. There were four or five chief engineers prior 
to my coming into office. I have had charge of it prac- 
2376 tically for twelve years. The channel was connected 
with the west fork of the south branch of the Chicago 
River at Robey street in the City of Chicago. It extended 
in a southwesterly direction to Lockport, where its con- 
tents were discharged into the Desplaines River. The 
artificial channel was 28.05 miles long. It extended from 
Robey street in the City of Chicago to Lockport, in the 
County of Will. Roundly speaking, the junction at Robey 
street 1s six miles back from the lake. 14.95 miles was 
2377 partially or entirely through rock section. 14.10 miles 
was through other substance. The channel in the rock is 
162 feet wide on top. It is a fraction under thirtv-six feet 
deep throughout the rock cuts. It is 160 feet at the bottom 
2378 through the rock. The channel does not cut through the 
lowest part in the divide between the water sheds. The 
general assumption is, however, that the divide is at the 
township line near Summit, in section G. At that point 
the excavation was thirty-eight feet. The summit through 
which the cut was made is about thirteen feet above Chi- 
cago datum. It would be about thirteen feet above the 
lake waters. The crest or summit that I have described 
is beyond the boundaries of the original district. There 
are many locations higher than the crest, within the drain- 
age district. They are ten or twelve or more feet higher. 
2379 The width at the surface in the earth portions of the 
canal are four times the depth plus the bottom width. I 
can give it to you at a place thirteen feet above datum. 


473 


At that point it is 262 feet across from slope stake to slope 
stake. At the bottom it is 110 feet wide. From the sum- 
mit to Willow Springs the bottom of the channel is 202 

2380 feet wide. Assume a case where it is forty feet deep, 
that would be 362 feet wide at the slope stakes. I forget 
whether the deepest place is on section C or on section 14. 
My recollection is it was about fifty-six feet. The slopes 
in the earth are one foot vertical, two feet horizontal. In 
the rock the cutting is vertical with two off sets on each 
side of six inches each. 

@. You may state what the carrying capacity of this 
canal in the rock portion to convey water is, in cubic feet 
per minute, pasta given point? 

Objected to by the defendant; objection overruled; de- 

fendant excepts. 

2381 Itis designed for a flow of 600,000 cubic feet per minute, 
or 10,000 per second. 

Q. At what current? A. A mile and nine-tenths per 
hour. 

(). You may tell the court whether or not the rock por- 
tions of the drainage canal will bear more or a greater 
current than that. If so, how much? 

Objected to by the defendant; objection overruled; 
defendant excepts. 

2382 There is no physical reason which would prohibit a very 
much higher velocity in the rock channel, because it is not 
subject to erosion. If it is possible to put it through 
there it would not make any difference if you put it 
twenty-five feet—let me see, twenty-five feet a second. 

2384 Such a velocity as that would involve a very preciptious 
slope. The slope at which the channel was built, you 
could not get any such velocity in it and you would have 
to go to work and figure a new slope in that channel. 
The new slope, you could use the cross section, of course, 
before starting—say you start here at twenty-two feet, 


474. 


and you want to get such a velocity, have a slope which is 
constantly approaching the bottom of the channel, and 
you are reducing its cross-section capacity. So it takes 
an elaborate computation to arrive at what you want. The 
slope of the rock section is one foot fall in 20,000 feet of 

2385 length. It falls away from the Chicago River southwest. 
I will simply state that a volume of water which can be 
gotten through here depends upon the height at which 
Lake Michigan stands. Our computations are based upon 
a mean depth of twenty-two feet, and at that depth, we 
have figured out that the channel will carry 600,000 cubie 
feet of water per minute. If the lake falls the capacity 
is diminished. If the lake rises the capacity is increased. 

2386 The lake has a fluctuation, a variation of four and four 
and one-half feet above and below its mean stage. 

Q. When the lake is piled up by natural methods to an 
altitude of two and one-half feet, how much water will go 
through the rock portions of this canal? A. It never 
does pile up to that, though. 

(). Suppose it does, then how much water will go 
through that? 

Objected to by the defendant as assuming a hy- 
pothesis or condition of affairs not proved by the 
evidence in this case. 

Objection overruled; defendant excepts. 

2387 A. I don’t know. 

I don’t know what was the highest water in the lake on 
the shore within this district. I don’t know whether it was 
in the year 1886. I cannot fix the date. I think I have 
known it to be three feet above datum. Three feet is, I 
think, the highest I have personally known of it. That 

2388 would make about twenty-five feet. At twenty-five feet, 
unless there was a corresponding adjustment of the gates . 
at the other end, it would increase the volume of water 
which would flow through. I don’t know how much it 


475 


would increase it. I have not figured it up at all. If it 
2389 is the thing which I must do, I will; otherwise I will not. 
2390 There are no means provided at Robey street where the 
channel connects with the Chicago River to govern the 
flow into the channel at that point. There has been a 
turning basin dug out there, a windage basin. I don’t 
recollect the size of the windage basin at that point, but 
I think it is 400 feet across. It is very nearly square. 
2391 Oh, it goes down in depth to minus 24.48, I think. The 
eross-section of the drainage district, where it connects 
with the windage basin, at that point, is 110 feet at the 
bottom width side slopes of one vertical to two horizontal. 
208 feet across. A series of lifting gates and a movable 
dam are provided for controlling the flow of water out of 
the channel. There are seven gates. hey have an open- 
ing each of thirty-two feet. The sill of the gate is fifteen 
feet below Chicago datum. They are of uniform size. 
2392 Masonry was put in in such shape that if at any time it 
was considered desirable to put in additional gates, the 
masonry could be removed and gates put in. I think there 
are eight blanks. The gates will be the same size as those 
already installed. The length of the crest of the dam be- 
2893 tween bulk heads is 160 feet. Friction has something to 
do with the quantity of water that will run over the crest 
of the dam. Increasing the friction reduces the efficiency 
of the channel. The crest is formed by two steel leaves 
coming together at an oblique angle. Friction comes into 
2394 play for the entire width of the crest, whatever that may 
be. I don’t remember what itis. The width of the crest 
2395 of the dam is nearly two feet. At the end of the channel 
there is a bulk-head and operating house between the 
gates and the Bear Trap Dam and, also, a small house 
with stairway leading up to the towers above the gates. 
They are simply adjuncts to the controlling works. There 
is one windage basin constructed at the entrance and one 


476 


at Lockport. The windage basin at Lockport is at the con- 
trolling works. The windage basin is a fan shaped basin 
gradually widening from 160 to 500 feet. The widest 
point of the windage basin is at the south end of the Bear 
Trap Dam. When the Bear Trap Dam is open the waters 
flow immediately out of this basin. The slope in the bot- 
2396 tom of the windage basin is one foot in 20,000. Rock 
and concrete walls surround the windage basin. I think 
the original excavation was in rock. If the dam has been 
closed for some time and then suddenly opened, it would 
2397 have a capacity equal to the flow of the channel. At 
least 600,000 cubie feet a minute, but after the dam had 
been lowered and the slopes adjusted themselves to a 
steady flow that is reduced very materially and I do not 
now recall what is the limit under the extreme slope. If 
2398 you could maintain a depth to get you 600,000 feet flow, 
it would flow 600,000 eubie feet right along, if you had the 
depth. The quantity of water passing over the crest of 
the dam depends upon the height. As the dam is lowered 
its resistance to the flow increases, because it presents a 
2399 broad flattening surface, rather than a sharp crest. It 
increases the friction. If the dam were raised up and 
2400 closed it would shut off the flow entirely. The difference 
2401 between the height of the dam when it is lowered as 
low as it can be, and the height of the crest when it is 
raised as it can be, is fifteen feet. It will hold the water 
up to the level of Lake Michigan, whatever that may hap- 
pen to be, provided it does not rise above plus 5; plus 5, 
2402 it would flow over the walls. With the lake at datum and 
the gates closed, the depth of the water in the windage 
basin would be about thirty feet. If the dam is closed 
and one of the gates that I have mentioned is raised to 
flow its full capacity, I don’t know how much water will 
pass that gate per minute, in cubic feet. I never figured 
2403 it out. The work was done under my supervision as 


477 


chief engineer. Abeut five per cent. of the work was con- 
structed at the time I commenced as chief engineer. Work 
was done in @ small way at various points between Willow 
2404 Springs “nd Lockport. No work was done on the con- 
trolling works and windage basin at Lockport. The con- 
trolling works at Lockport were completed some time 
prior to the completion of the channel. I don’t recall now 
the dates. The channel was practically completed in De- 
cember, 1899. The portion between Summit and Willow 
Springs is about 5.3 miles long. It is excavated through 
glacial drift. The cross-section of the channel is 202 feet 
wide on the bottom; the side slopes are two feet horizontal 
to one foot vertical. The slope at the bottom at that point 
is one foot to forty thousand. It is designed for a flow 
of 600,000 cubic feet of water per minute, of a velocity of 
a mile and a quarter an hour. All of the matters I have 
2405 mentioned and described there comprise what is known 
as the controlling works. I was present at the controlling 
works on the 17th day of January, 1900. The president 
of the board and his associate, trustees, engineers, and 
the clerk of the district were present at the controlling 
2406 works on the 17th day of January, 1900. I recall the 
presence of Mr. Johnson and Mr. Cooley, engineers at that 
time. Prior to that time nothing but the leakage had been 
allowed to run through this channel and along through 
the controlling works. Colonel Taylor, as representing the 
governor of the state, formally authorized the opening of 
2407 this canal in the name of the State of Illinois. I am 
unable to answer who opened the canal. There was such 
a scramble for the honor that I don’t know who really 
2408 deserved it. The president of the board said, ‘‘ Let her 
go,’’ and then the valves were opened and the dam was 
lowered. When the dam was lowered the waters of the 
channel began to seek their level, going west as hard as 
they could towards St. Louis. They flowed to the Des- 


478 


2409 plaines. Well, following the natural law, they flowed 
into the Illinois River and from the Illinois River into the 
Mississippi River. If they do not evaporate before they 
get there they get into the Gulf of Mexico. 

Mr. Curran: @. Where did these waters come from? 

2410 A. JI think they were condensed vapors. 

I think they started near the eastern boundary of the 
State of Illinois, in Lake Michigan, and out of Lake Mich- 
igan into the Chicago River, and from the Chicago River 
into the Sanitary and Ship Canal. On the 2nd day of 

2411 January, 1900, the channel was empty and was being 
filled from Lake Michigan. The defendant corporation 
did it. The first actual flow upstream in the south branch 
of the Chicago River and down stream in the channel that 
that I have described, into the Desplaines River, was on 
the 17th of January, 1900. I know the Town of Lyons. 
I have been there very often. I did construct some work 
along or adjacent to the Desplaines River at the township 

2412 of Lyons. It consisted of levees and concrete embank- 
ments. The levees were a mile or two long. They ex- 
tended beyond the township of Lyons several miles. The 
total length of these levees was nineteen miles. I don’t 
know the width of the bottom. They vary. I don’t know 
about the height, either. They varied in height. I sup- 
pose an average height of eight feet or so. They were 
constructed of the soil adjacent to the point, adjacent 

2413 to the places at which they were built. My recollection 
is they were about twenty feet wide on top and on the side 
slopes one and a half to one. The length of the stone 
and concrete work between the bulk-heads was 398 feet. 
The height of the concrete work was about seven feet 
The width was four feet wide, on top, and I don’t re- 
member the width at the bottom. There was a slight de- 
pression below the general surface of the valley at the 
point where the stone work was constructed. The levees 


479 


that I have described at that point connected with the 
stone and conerete work at each end. The stone work 
2414 and levees ran in a southwesterly direction. A very 
large part of it was at the southerly end of the stone 
work; only a small amount was at the north end. It 1s 
about six miles from Robey street to the lake at the 
2415 south branch of the Chicago River. The Sanitary Dis- 
trict has built a number of bascule bridges. It has wid- 
ened and deepened the river; built a very large amount of 
docking. I think it began in the fall of 1899, or spring of 
1899, to widen the river; I don’t recollect which. The 
2416 river was widened a uniform width of 200 feet. Exca- 
vation is confined to the south branch of the Chicago 
River. We did not go into the main river at all. About 
2418 85 per cent. of that distance had to be worked upon. We 
deepened about eight feet. That was true for about five 
miles. The work has not ceased yet. We are still en- 
gaged init. [ have never computed what was the flowage 
capacity from Lake Michigan to the canal at Robey street, 
before that work was commenced. I have a knowledge of 
statements made by others which I think are reasonably 
2419 correct. I mean engineers under my supervision and 
direction. I think the report was made to me by Mr. T. T. 
Johnson, although the work was not done by him. I don’t 
recall now who the work was done by. We had several 
parties engaged in work of that kind. The flow to the 
westward, so far as I am advised, did not exceed at any 
time 60,000 cubic feet of water per minute, which was what 
was pumped into the Illinois and Michigan Canal. That 
was prior to the opening of the Sanitary District. Since 
2420 the opening of the Sanitary District channel and since 
the widening and deepening of the Chicago River, the 
flow has varied at times. The Secretary of War assumed 
control of the flow in the Chicago River and dictates what 
shall be allowed to flow, so as not to interfere with naviga- 


480 


2491 tion. The widening is not completed, you remember. At 
the present time it could safely flow 300,000 cubic feet. 
It is being improved with a view to flowing 480,000 cubic 
2422 feet of water through it per minute. The water will flow 
into the Sanitary and Ship Canal. All of the bridges be- 
tween Lake Michigan and Robey street, with three ex- 
ceptions, had center piers. It tended to decrease the flow 
2423 of the water. The bridges since constructed by the de- 
fendant corporation are bascule bridges and have no cen- 
ter piers. It facilitates flow, increases capacity. The 
2424 flow in the stretch indicated is one and one-quarter miles 
2425 per hour. The slope in the Chicago River, since it was 
deepened, is to the westward and something in the neigh- 
borhood of two feet in the six miles. Before that time, it 
is very hard to tell which way the slope was. I have seen 
the water going down stream and then I have seen it 
going up stream. A by-pass has been constructed be- 
tween Adams street and Van Buren street on the west 
2426 side of the river. I think it was commenced in the spring 
of 1899 and finished in 1900, with a capacity of about 
90,000 eubie feet per minute. It empties into the Des- 
2427-plaines River through the Sanitary District Canal. It 
2428 is a part of the flow of the Chicago River, which I have 
been deseribing. It adds nothing to the volume which I 
have heretofore mentioned. The channel through Joliet 
was enlarged in the Desplaines River to a width of 200 
feet, and deepened, and the concrete walls built. The 
upper basin was dredged to a depth, I think it is minus 
2429 51. A new channel was cut from the controlling works 
through to the wire mills road, about a mile, diverting the 
old Desplaines River channel. Dam number 2, at Joliet, 
Adams Dam, were removed. The stone arch bridge was 
removed and replaced by steel structure on Jefferson 
street. There is a pier in the center of the stream of con- 
crete. The concrete retaining walls are four feet wide on 


481 


top and at every part of their height. I am acquainted 
with the locality of Sixteenth street at Lockport. The 
2430 tail-race from the dam to Sixteenth street was exca- 
vated 600 feet wide. I don’t know how deep. I think it 
gives a flow of about four feet of water. The tail-race 
leads from the discharge to the Bear Trap Dam. It is 
2431 designed for a capacity of one million five hundred thou- 
sand cubic feet of water per minute. The defendant cor- 
poration did not construct a continuous artificial channel 
from the Summit or Lyons spill-way to a point opposite 
the Bear Trap Dam. We corrected the course of the 
Desplaines River and wherever the old channel could be 
made available, it was so made, but we made thirteen 
miles of new channel in that district. A part of it was 
through glacial drift and part of it was through rock. It 
was 200 feet wide. The depth varied considerably. Prob- 
2432 ably the average depth was four feet. I do not think 
the average depth will exceed three feet. Let me think. 
There was 19 miles of levees and 13 miles of new channel. 
I can’t answer the question as to the capacity of the new 
or artificial channel. The slope of the channel is to the 
westward. I don’t remember the rate of grade. It emp- 
ties into the old channel at Romeo. Of course, that is not 
a continuous artificial channel. There are parts of the old 
2433 channel that come into play there. I am acquainted with 
a stream known as the Calumet River. It rises in the 
State of Indiana. It has two branches; both rise in the 
State of Indiana; flowing in a westerly, southwesterly di- 
rection, then curving to the north and changing to a north- 
easterly direction and emptying into Lake Michigan at 
2434 South Chicago. About 12 or 13 miles south of the point 
where the south branch of the Chicago River enters Lake 
Michigan. 


@. You may state to the court what work, if any, the 


2439 


2436 
2437 
2438 
2439 
2440 
2441 


482 


defendant corporation has projected relative to the dis- 
trict in which the Calumet River is located. 

Mr. CurPerFIELD: ‘The defendant objects on the ground 
that the same is incompetent, irrelevant and immaterial 
and not tending to prove any of the causes of action raised 
in the plaintiff’s declaration and for the further reason 
that the question refers to a time more than five years sub- 
sequent to the 17th day of January, 1900, when, if ever, 
the plaintiff’s cause of action accrued in this cause, and 
at a time that would be barred by the statute of limita- 
tions of the State of Lllinois.’’ 

Objection overruled; defendant excepts. 


Mr. CurperFIeLD: And for the further reason that the 
evidence sought to be elicited is not the best evidence, 
but that the proposed structures, improvements and cre- 
ations of the Sanitary District, under and by authority 
vested in it, by the legislature of the State of Illinois, is 
better proved by the records, ordinances, orders and reso- 
lutions of the Sanitary District. 

Objection overruled; defendant excepts. 


It is proposed to make a channel at a point near Blue 
Island, extending southwesterly, through what is known 
as the Sag Valley, to a junction with the Sanitary and 
Ship Canal at Sag Station, on the line of the Alton Rail- 

road. It is hard to say under whose direction it will be 

done. Itis proposed to be done under my direction. The 

channel will be about 17 miles long. Its cross-section 

has not been adopted. I don’t know approximately 

what it will be. It has taken no steps to acquire the right 

of way other than to have the property appraised. The 
purpose of the proposed channel is to reverse the flow of 
the Calumet River. 


@. From what to what will that proposed channel 
cause the water of the Calumet River to flow? 


483 


Mr. CureerFtetp: The defendant objects on the ground 
that the same is incompetent, irrelevant and immaterial, 
and not tending to prove any of the causes of action raised 
in the plaintiff’s declaration; and for the further reason 
that the question refers to a time more than five years 
subsequent to the 17th day of January, 1900, when, if 
ever, the plaintiff’s cause of action accrued in this cause, 
and at a time that would be barred by the statutes of lim- 
itations of the State of Illinois; and for the further reason 
that the evidence sought to be elicited is not the best evi- 
dence, but that the proposed structures, improvements 
and creations of the Sanitary District, under and by au- 

2442 thority vested in it by the Legislature of the State of 
Illinois, is better proved by the records, ordinances, or- 
ders and resolutions of the Sanitary District. 

Objection overruled; defendant excepts. 

It will cause them to flow in a southwesterly direction, 
away from Lake Michigan; discharge them into the chan- 
nel already built by the Sanitary District of Chicago. 

How much water will it be necessary for that proposed 
channel to carry in cubic feet, per second, in order to 
accomplish the purposes of the defendant corporation? 

Mr. CurperFieLtp: The defendant objects on the ground 
that the same is incompetent, irrelevant and immaterial, 
and not tending to prove any of the causes of action 
raised in the plaintiff’s declaration; and for the further 
reason that the question refers to a time more than five 
years subsequent to the 17th day of January, 1900, when, 

2443 if ever, the plaintiff’s cause of action accrued in this 
case and at a time that would be barred by the statutes 
of limitations of the State of Illinois; and for the further 
reason that the evidence sought to be elicited is not the 
best evidence, but that the proposed structures, improve- 
ments and creations of the Sanitary District, under and 
by authority vested in it by the Legislature of the State 


484 


of Illnois, is better proved by the records, ordinances, 
orders and resolutions of the Sanitary District; for the 
further objection that the question assumes a hypothe- 
sis not proved by the evidence in the case, and that there 
has been no sufficient foundation laid for the answer to 
the question. 

Objection overruled; defendant excepts. 

A. There has been no estimate made yet. 

2446 @. What will be the effect if that channel is construct- 
ed upon the waters in the main channel of the Sanitary 
District below Sag, to increase or decrease them? 

Mr. Cuiprerrisyp: I object to the question as leading 
and suggestive, as referring to improvements to be con- 
structed in the future at a time more than five years sub-. 
sequent to the 17th day of January, 1900; as calling for 
the conclusion of the witness upon a hypothesis not sup- 
ported by the evidence in the case; and as a plain attempt 
of counsel to prejudice the cause of the defendant by re- 
ferring to matters and things that are improper for coun- 

2447 sel to refer to in this proceeding. 

Objection overruled; defendant excepts. 

A. That will result in the mingling of waters flowing 
from the Chicago River and the waters flowing from the 
Calumet River. 

Q. How, if any, will it increase the water in the San- 
itary District channel below the Sag? 

Mr. CureerFIELp: I object to the question as leading 
and suggestive; as referring to improvements to be con- 
structed in the future, at a time more than five years sub- 
sequent to the 17th day of January, 1900; as calling for 
the conclusion of the witness upon a hypothesis not sup- 
ported by the evidence in the case; and as a plain attempt 
of counsel to prejudice the cause of the defendant by re- 
ferring to matters.and things that are improper for 

2448 counsel to refer to in this proceeding. 

Objection overruled; defendant excepts. 


485 


A. That is a matter which is under the control of the 
Sanitary District, and I am unable to say that it would 
increase it at all. 

2449 JI have no opinion as to what people not now in office 
will do when they come in office. None of the territory 
between Blue Island and the Sag was in the original area 
of the Sanitary District, as first organized. 

2453 It is not within my knowledge at the present time how 
much additional territory to be drained under the super- 
vision of the Sanitary District of Chicago is proposed to be 
taken in by the proposed channel in the Calumet River; 
something over ninety square miles has been added to the 
original territory of the Sanitary District of Chicago in 

2454 the Calumet district. It was authorized at the session 
of the Legislature two years ago. My recollection is the 
bill became a law about the 15th of June, two years ago. 
The bottom of the channel at Robey street is 24.48 feet 

2455 below said dam. The memorial now shown me, marked 
Plaintiff’s Exhibit 9, was prepared by some one other 
than myself and was not submitted to me before it was 

2456 published. I did not compile the memorial. I was not 
asked to furnish the data for it, nor was the memorial 

2457 submitted to me when it was published for revision. It 
has a fimiliar look, but I was not called upon for any of 
the engineering data contained in Exhibit 9. I take it 

2458 for granted that the cross sections of noted canals, ap- 
pearing on the second page of Exhibit 9, came from the 
drafting department of the Sanitary District. They look 
like productions of the large sheets which we have, illus- 

2459 trating those canals. The drafting department is a 
part of the engineering department of which I am chief. 
The cross section of noted canals, including the Chicago 
Sanitary and Ship Canal, appearing upon the page 

2460 shown, are correct. I believe that the sheet attached to 
and a part of Exhibit 9, which has been shown me, was 


486 


prepared under the direction of Mr. E. L. Cooley, during 
his term as a member of the Sanitary Board. He was at 
one time the chief engineer of this board and was very 
well up in all this sort of thing, and I think it was com- 
2461 piled under his direction. I am not acquainted with the 
Illinois River at a point at or near Lake Joliet, to its 
confluence with the Mississippi River. I am acquainted 
with portions of it. I am acquainted with the portions 
near Desplaines, near Marseilles and a portion near Ot- 
tawa; a portion near Utica, a portion near La Salle, and 
I have several times made the trip from La Salle to the 
2462 mouth of the river, going all the distance by boat. On 
one occasion measurements were made of the current 
along the Illinois River under my direction; on one oc- 
casion the measurements were followed through to the 
mouth of the river; on one occasion that I know of, by 
2463 means of floats; I was not with the party; I did not see 
them put in. A report was made to me by the men who 
did follow the floats. Mr. KE. H. Heilbron was in charge 
of the party. I don’t recall the names of all the men 
who were with him at the time. A man named Smith 
was with him. JI am not sure whether Atkinson was with 
him or not. I think he was. I do not recall now who the 
2464 other men were, but I think those two were with him. 
Mr. EK. H. Heilbron is a civil engineer. He was in charge 
of the party. My recollection is it was in June, 1903. No 
other or different measurement by float has ever been 
made under the management and direction of my depart- 
ment by the defendant. The reports of the result ascer- 
tained by that measurement were in writing. They are 
2465 somewhere in my files. The reports were made at the 
end of the trip, in one report. The right of way of the 
defendant corporation, the Sanitary District of Chicago, 
from Robey street, Chicago, to Hickory Creek on the 
south limits of the City of Joliet, is very irregular in its 


487 


width. It is probably about a quarter of a mile, the av- 

erage width. At the widest point, 2,200 feet; at the nar- 
2466 rowest point, 800 feet; through Joliet we have not a 

width of 800 feet; there is simply the width of the stream, 

a little over 200 feet. The Sanitary District of Chicago 

is in possession of the right of way I have described be- 

tween Robey street, Chicago, and Hickory Creek, on the 

south limits of the City of Chicago. 

Cross-examination waived. 
(Signed) IsHam RanpoupH. 


2467 Wituiam M. Curistiz, deposition offered by the plain- 
aie 
Direct Examination Read by Mr. Butters. 


My name is William M. Christie. I am forty-one years 
of age. I reside in La Grange, Illinois. I am a photog- 
rapher; about seven or eight years. I make a specialty 

2468 of engineering photography; since 1898 I have been 
working for the Sanitary District. I was in their employ 
from August, 1898, to April, 1901, in photographic work. 
I made probably a thousand negatives during that pe- 

2469 riod. I photographed Exhibit 12 shown me. It was 
taken on the north side of the canal, what is known as 
Section 2 of the Drainage Canal, July, 1896. I set the 
camera, focused it and made the exposure. The picture 
is correct. J retained the custody of the negatives from 

2471 that time until the present time. I did the developing; 

2472 used the rectilinear lens in making the picture. The 

2475 excavation where the picture was taken was partly rock 
and partly earth. I don’t know exactly the depth of the 

2476 canal at that point. I should say approximately thirty- 

2477 five feet. It was 160 or 162 feet wide at the bottom. I 
have been in possession of the exhibit and it correctly 
shows the situation at that point. I made the picture 


488 


2478 marked Plaintiff’s Exhibit 13. It shows that portion 
of the Sanitary District channel known as the controlling 
2479 works and Bear Trap Dam near Lockport. I have been 
acquainted with the situation there since 1898; possibly 
before that some. I remember the occasion of the turn- 
ing in of the water over the Bear Trap Dam on the 17th 
2480 of January, 1900. I was there after the water was 
turned in. After the dam was opened the water was 
flowing over the dam. The negative for Exhibit 13 was 
2481 taken on the 27th day of January, 1900. The camera 
was placed below the dam on a table or platform formed 
by the concrete in the construction of the dam; no bridge 
had been constructed at that time. I think that seven- 
eighths of the field of the dam was within the lens of the 
482 machine. I refer to the crest of the dam. The water 
Y483 was running over the dam at the time the photograph 
was taken. There was a gauge there at that time indi- 
eating the amount of water flowing over the dam. I was 
able to read the gauge. It showed 2.7 feet. I made a 
2484 memorandum at the time. This forms a part of the pho- 
2485 tograph by being written on the photograph. I placed 
the negative number on the photograph and the descrip- 
2487 tive matter. The work of taking the picture was correctly 
done. The picture correctly and truly represents that 
portion of the controlling works within the field of the 
lens. JI am acquainted with that part of the Sanitary 
District channel was just above the controlling works. 
2488 It was called the windage basin. I think it is something 
over 400 feet wide. It connects with the main drainage 
2489 channel. There are seven sluice gates there through 
2490 which the water passes. That is in addition to the Bear 
Trap Dam. There are eight blind gates filled with con- 
crete bulkheads. I took a picture of the windage basin 
and controlling works and lower end of the canal. It is 
marked as Exhibit14. Atthe time that picture was taken 


489 


the camera was on the bank of the canal at the end of 
2491 the controlling works, at the end of the windage basin, 
about twenty feet from the edge of the canal. I took 
three negatives. I focused, set and made the exposure. 
The work was correctly and properly done. The nega- 
2492 tive on the right was made first, marked 14 A. The one 
forming the center of the panorama was made second, 
2493 marked 14 B. The portion marked 14 C was taken last. 
This kind of a view is known as a panoramic view. I 
2494 developed the negatives and they have been in my pos- 
2497 session since they were made. The windage basin is 
bound by a concrete retaining wall, approximately 
eighteen feet high and four feet wide on top. I have 
been acquainted with the wall since ’96. There is a rail- 
2499 ing or fence with iron bars on top of the two walls I 
2500 have deseribed; about thirty inches high. The upstream 
portion of the controlling works is shown in Plaintiff’s 
2501 Exhibit 14. The Bear Trap Dam is not shown. That is, 
2502 the opening is shown. The buildings in connection with 
the Bear Trap Dam and what is known as the tower house 

in connection with the sluice gates and the upper works - 
2503 of the sluice gates are shown. The operating house of 
the dam is also shown. No portion of the dam proper is 
shown. As I said before, the upper works of the sluice 
gates and the building in which the machinery operating 
2504 the dam is housed or located is shown. At the places 
referred to in Exhibit 14 marked 1, 2, 3, 4, 5, 6 and 7 are 
what is known as the blind gates, blind sluice gates, or 
those not in use. There are no gates there, but they are 
2505 called blind gates. The dam is not shown because of 
the water flowing over it, it does not show. A bridge 
has been erected across the opening in front of the dam 

_ and building or buildings have been erected over the ma- 
2506 chinery and counterweights at one side of the dam. I 
have seen, since the bridge was constructed, the Bear 


2907 


2508 


2509 
2010 
2511 


490 


Trap Dam of the defendant corporation in operation five 
or six times a year; possibly more; sometimes oftener 

than that. The flow of the water over the Bear Trap 
Dam is not as wide as the span of the bridge. The bridge 
is approximately fifteen feet longer than the dam. At 
the time of the taking of the negative for the panoramic 
view, Plaintiff’s Exhibit 14, I didn’t notice the water 
gauge on the dam. The water was running over the dam. 


Plaintiff offers in evidence Plaintiff’s Exhibits 12, 13 
and 14. 

The defendant objects to the same and to each of the 
same for the reason that each photograph is in- 
competent, irrelevant and immaterial and does not 
tend to prove any of the plaintiff’s causes of ac- 
tion, and for the further reason that no proper or 
sufficient foundation has been laid for the admis- 
sion of either or any or all of said photographs; 
objection overruled; defendant excepts. 


Cross-examination waived. 

(Signed) Wriiram M. Curistts. 
Exhibit 18. 
Exhibit 19. 


Exhibit 20. 





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491 


2514-2518 Argument of Mr. O’Conor on the admissibility 
of tax receipts. 

2520-2527 Argument of Mr. Chiperfield on the admissibility 
of tax receipts. 

2528-2530 Argument of Mr. Butters on admissibility of tax 
receipts. 

2530-2540 Statement by the court with reference to the ad- 
missibility of testimony, as follows: 

The Court: This very situation was foreseen by me 
the very minute, | may say, the very second, that the 
first question was asked Mr. Hazen about the payment 
of taxes. The very minute, I think I am literally accn- 
rate when I say the very second the first question was 
asked, the whole situation dawned before me just like a 
flash. 

I am in the situation that Mr. Chiperfield said he was 
when Mr. O’Conor proposed to bring this motion before 
the court. JI am hardly ready to express myself, not so 
much because my mind is not pretty well settled on this 
subject, but because of my inability to select just the 
right words to present conspicuously the view I have of 
the matter. Apologizing in advance for what might be 
imperfections in my expression and inviting you to the 
central thought of what I say, I will state what I think 
about this matter. The measure of damages and the 
course of proof to establish it as a rule is plain and I 
think is conceded by both sides. Notwithstanding that 
general proposition, I think it is true that if the land for 
any purpose has been depreciated in its market value, 
the plaintiff is entitled to the damage resulting there- 
from, although for many other purposes the land in value 
may remain the same. 

When the cross-examination of the first couple of wit- 
nesses began in this case, on the question of the market 
value of the land, and the plaintiff’s alleged damages, I 


4912) 


was nearly driven from my propriety by the objections — 
to the questions on the cross-examination when the wit- 
nesses were asked if it was not worth something for coal: 
purposes, if it was not worth something for gardening 
purposes; a long line of objections were imposed and my 
compliments in the judgment of plaintiff’s attorney on 
the subject nearly drove me from what I am now satis- 
fied was the right view of the situation, and I many times 
since congratulated myself that I overruled those objec- 
tions. | 

The same is true as to the question as to the rental 
value. J am confident that it was admissible on cross- 
examination and that it would not have only been error 
for me to have sustained those objections, but I think it 
would have been unjust to the defendant to have ex- 
eluded those matters from the Jury and the court. 

I sustained an objection to a question, perhaps more 
than one, as to the assessed valuation of the land, as to 
what the land was taxed at, and I think rightly. If the 
defendant had offered these tax receipts I should have 
excluded them. If they should offer to prove on direct 
examination, when it comes to their case, what the land. 
was worth for coal purposes, I will exclude that, because 
that is not the measure of damages; that is in considera- 
tion affecting the testimony of the witnesses and their 
opinions, which I concede was a proper matter for in- 
quiry on cross-examination. 

But that these tax receipts were admissible on eross- 
examination I think is hardly subject to debate. 


The question that is now in my mind and has been in 
my mind from the beginning as to whether they are ad- 
missible for all purposes for which I can well foresee 
they may be used by the defense. If it is true, as sug- 
gested by Mr. O’Conor, that this whole question of title 
is not for the jury, they have nothing to do with it, then 


495 


I think his view of the matter is right; but, if the ques- 
tion of title is a matter for the jury, as well as other 
questions, then I am in doubt what limitation, if any, I 
should put on those tax receipts. I am under the im- 
pression that it 1s proper for me to state to the jury 
that the assessed values have nothing to do with the mar- 
ket values of this property and is not a matter for their 
consideration. But, as to the amount of taxes that were 
actually paid, I have grave doubts about that. It seems 
that proof of elements like renting value, coal value, gar- 
dening susceptibilities and all those things are elements 
to be considered; that is the way I view it now. I know 
that the valuation put on this property does not tend to 
prove its market value legitimately in law as well as in 
principal, and I repeat that the first question had not 
been answered before I foresaw this whole situation just 
as I see it now, just exactly. J haven’t been on the bench 
so long but what I know what lawyers like to do. 


If this whole question of title is to be excluded from 
the jury then I will, without question, have no hesitancy 
in excluding these receipts from them; but I think that 
the amounts actually paid, like rental value and such 
thinks like that, I am free to say about that, I am in 
doubt as to that subject a little. But as I am advised at 
present, I think I am willing to take a positive stand in 
any event against the assessed valuations of the land 
and the tax receipts being used by the jury for any pur- 
pose. It is simply a question if a witness says it is not 
worth the taxes and the labor, it seems to me they have 
the right to ask him how much the taxes are. Of course, 
that is a question independent of the assessed valuation. 

I have expressed no opinion about the question of title; 
I haven’t any very settled opinion about that, but I sup- 
pose that question does not need to arise just now, any- 
way. 


494. 


If a witness on the stand should state, as some of them 
have, that the taxes and the labor of cultivation exceeded 
the value of the land, I would have to forbid the question, 
on cross-examination, what is the expense of the cultiva- 
tion of that land; what is the labor; what is the amount 
of taxes. I would feel as if it would be error; I feel it 
would be an unjust limitation on the right of cross-ex- 
ination. It may be a question so close that the higher 
court will say it is not reversible error. There is so much 
in this case that would not reverse the case because of 
that ruling on that subject. I believe that is all., I think 
that is the most that could be said in favor of that ruling 
on my part that way. 


I know what I have stated is not very satisfactory to 
either side, because it still leaves them in doubt, but the 
reason for that is that is the position of the court. The 
jury is not here. I do not say anything on the subject. 
I will not make any final ruling until I am called upon 
to. I doubt whether there is much of anything either of 
you can say on the subject that would change my mind, 
because my opinion arises from the consideration of the 
whole situation of the case. The plaintiff’s lawyers 
know, as well as I do, if they had offered these tax re- 
ceipts or offered to prove the assessed valuation, that I 
would rule it out. I have already done that. So I agree 
with you on the subject, on the main question, that it is 
not substantive, independent original evidence with them. 
I think it is legitimate and proper because it is inti- 
mately associated with, connected with the cross-exam- 
ination, and I state again T have many times since con- 
eratulated myself to think I allowed Mr. Chiperfield to 
ask the witnesses if there was not coal on the land that 
was valuable, when they said it was worthless. He asked 
them what the rental value was. JI am sure that was 
proper, as I see it. Of course, that is as far as I can 


495 


go and I might be wrong from the beginning, but if I 
feel right here, that is satisfactory to me, and I do feel 
right about that. 

Now, any time you want to take up this question of 
title, [ will hear you. If you are right on that, of course, 
this evidence as presented by you and cross-examined by 
the defendant on the question of title, is that is confined 
to the court, that is a different proposition. 

Mr. Cuiperrietp: May I suggest, your Honor— 

The Court: Yes, sir. 

Mr. CuiperFietp: Your Honor, this is informal before 
the court and I think it better not go in the record at all. 

The Court: Well, I went into the record. 

Mr. Cutrerrietp: All right, I am perfectly willing for 
this to go into the record. 

The Court: Let it all go. 

Mr. CuHIPerFIELD: I was simply making it now for the 
convenience of all concerned in the case. I understood 
your Honor to say in the opinion that if independent 
proof was offered as to the value of this land, as a coal 
proposition, it would be rejected? 

The Court: I don’t think on the market value—I 
agree with you it must be the market value for all pur- 
poses. 

Mr. CuiprerFietp: Just let me inquire this, because I 
want to get this in in the shortest possible shape when 
we get to our case. I am really inquiring more for in- 
formation than for any other purposes, so we can frame 
up our case in such form as to accelerate this case. Let 
me suggest, your Honor, merely that I want to show this 
upon the question of value. 

The Court: I think I will let you prove that. 

Mr. CHIPERFIELD: Sir? 

The Court: I think I will let you prove that; they 
have gone into the market value of the land. 


496 


Mr. CHIPERFIELD: Yes. 

The Court: You can make the same proof. I don’t 
know what is in the mind of the witness. 

Mr. CHIPERFIELD: I see the point. I see the point. It 
is their responsibility. 

The Court: Yes, sir; not mine. 

Mr. CHIPerRFIELD: I get the point. Now, while we are 
here without anything to divert our minds on the matter 
and without the jury— 

The Court: I think it would have been error to have 
let Mr. O’Conor say, ‘‘ What is the market value of that 
land for agricultural purposes?’’ Iam not sure of that, 
and I think the same thing applies to the market value of 
the land for coal purposes. 

Mr. Curperrietp: Would it be well for us to take up 
at this time the production of those documents? 

The Court: Better wait until you get through with 
the plaintiff’s case, hadn’t you? 

Mr. CHIPERFIELD: I am agreeable. Anything the court 
wishes is agreeable to counsel. 

The Court: This is a quit claim opinion I am giving 
and I am not bound by these individual separated state- 
ments. I have been talking with perfect freedom here and 
there may have been a great many things I have said 
that, when I review it, will not correctly and accurately 
reflect my views, but you have my central idea of the sit- 
uation. 

Mr. CurperFietp: I appreciate the frankness with 
which the court has made his statement, and in the mak- 
ing up of the record, if your Honor wants any part of it 
expunged, I am perfectly willing. 

The Court: No, the record may stand. You may think 
some of my rulings are in conflict with what I have said, 
but you cannot use my statements for an authority for 
any proposition, that is what I mean. 


497 


Mr. CureerFieLp: No, we will not, at any stage of the 
proceedings. 

The Courr: I wasn’t considering it that way. I was 
trying to tell you the best I could just how I view it. 

Mr. Cuiperristp: And I regard the idea of the court 
as very helpful all around and we will conform to the 
ideas of the court as far as we can. 

Mr. Burrers: May I make a suggestion? While the 
court was talking an idea occurred to me that I want to 
express. Any proof as to the products that have been 
raised on this land subsequent to 1900, the amount and 
actual realization from them, that, as I understand it, is 
not really to be considered at all. My view of it was that 
that has been with the idea, if it was after 1900, it was 
purely an evidentiary matter, that the amount of corn 
raised on the land for one or more years could not be 
figured up for the purpose of obtaining a set off of that 
amount against the taxes, or anything of that kind, or 
determine a eredit or anything that the witness might 
mentally subtract to ascertain what the value was in 
1900, but simply the market value determined as if the 
jury had in their possession on January 17, 1900, all the 
facts that so and so—that have been since seen to be 
true. 

Mr. CurpeerFretp: In other words, foresight? 

Mr. Burrers: Yes, but that they would not have the 
right to make a computation of the earnings, receipts, 
ete. 

The Courr: Oh, no, there is nothing of that kind in 
the case. 

Mr. Burrers: That is why I think the tax receipts— 

The Court: Oh, no, we can’t do that, it 1s only admis- 
sible as— 

Mr. Burrers: Evidentiary matters. 

The Court: They are corroborative. 


498 


Mr. Burrers: And on that view I couldn’t see why it 
would be material to put in evidence as an issue how 
much the receipts were over the expenditures, any more 
than to give the witness the general view as to his testi- 
mony. 

Mr. CHIPERFIELD: We are entitled to know the basis, 
and when we have that we are entitled to know anything 
else, so that we have all of this basis. 

The Court: Call the jury. 

(Jury returns to the jury box.) 


2541 Nick Buscarn, a witness called by the plaintiff, testified 
as follows: 


Direct Examination by Mr. O’Conor. 


My name is Nick Busgen. I live three and a half miles 
south of La Salle. I am twenty-two years old. I ama 
gardener. I farm land lying west of the [Illinois Central 
and south and east of the Illinois River; rent it from the 
La Salle County Carbon Coal Company; from 1905 to 
1910. My uncle and myself farmed the first year in part- 

2542 nership. JI had it four years alone. We started to 
plant in 1905 in May, early in May. Got the second part 
of the crop in the latter part of May or about the first 
of June. Supposed to be eighty acres in the piece I had 
rented. I got forty to forty-five acres in crop. During 

2543 that year we got soft corn. That is, it didn’t get ripe. 
There was worms in the corn that year, too. I worked 
the same piece during the year 1906. It was a good 
year; fine year; had a good crop in that year and had 
all of the land planted. We had seventy-five acres plant- 

2544 ed in corn. It was pretty fair, pretty good corn that 
year. We had the same piece of land in 1907; got in on 
it to plant about the last of May. It was then wet and 
boggy. Planted about thirty-five to forty acres. The 


499 


eorn didn’t mature that year. It was soft. Took the 
corn off about the last part of October. The ground was 
wet when we were husking. I had the same corn during 

2045 the year 1908. We got in on corn that year around 
June. We planted about forty acres in that year to 
corn. It didn’t mature; we got a soft corn; picked the 
corn off about the first of November. I had the same 
piece during the year 1909. We didn’t get in on the 

2546 ground until the first of June. Got about thirty-five 
acres planted that year. The corn didn’t mature. The 
eround was soft and wet. The corn was soft to husk. 
I was there also in the year 1910. Worked that same 
ground that les west of the Central and south of the 
river; got in there about the last part of May; planted 

2547 about forty acres. The corn was soft that year. We 
started to husk about the first week in November. The 
ground was wet. 


Cross-Examination by Mr. Chiperfield. 


We farmed that land last in 1910. We planted about 

forty acres in 1910. There wasn’t over twenty-five bush- 
2548 els of corn. The corn we got, we took part of it home 
and some of it, the company’s share, we took to their 
place. Their share was one-third. I think we got 25 
cents a bushel for it that year, in 1910. In 1909 we got 
2549 in about forty acres. We didn’t get much corn that 
year, either; had poor corn. I guess we got about thirty 
bushels to an acre. We took our share home 
and sold it. I think we got 30 cents a bushel for 

it. In 1908 we got in thirty-five acres; yes, forty acres. 

In 1907 we had thirty-five acres. The yield ran about 
2550 the same as it did in 1909. We sold our share of the 
eorn. In 1906 we got on the land early. The water had 
come up in the spring and went down and we got on 

the land early to plant. The land was dry and we got 


O00 


2551 it all planted. I have seen the water lower than it was 
during 1906. I think the water, during 1906, got down 
to within four or five inches. That was as low water as 
I have ever seen on the Illinois River. 1906 was a dry 

2552 year. 1907 was a wet year. There was some trouble 

2553 getting in crops on the upland. In 1906 we raised about - 
sixty bushels of corn to the acre. We got 37 cents a 
bushel for it. The corn in 1905 was drowned out in 
May. Some places the water was three feet deep on 
the land and other places it was only a foot. The land 

2000 we had was between the @. and the Central, right east 
of the Central. We had about a sixty acre patch. We 
also had thirty acres on the north side of the C., B. & Q. 

2556 We called it thirty acres. The land north of the C., B.& Q. 
is high. It is affected by the high waters. It is higher 
than the land on the south side of the Q. railroad. About 
four feet higher than the rest of the land. The corn 

2557 was pretty fair in that piece; better than on the south 
side. We could get in three or four days before we 
could get in the other piece. Bottom corn does not ripen 
as fast as it would on top land. I think it takes longer. 

2558 The bottom lands take a longer time and the corn don’t 
harden up like top lands, prairie lands. I paid one-third 

2561 rent for the use of this land. We cultivated right up. 
to the waste bank off the mine. I think that bank was 
there since 1907. 


2562 Aucust Lavens, a witness called by the plaintiff, testi- 
fied as follows: 


Direct Examination by Mr. O’Conor. 


My name is August Lavens. I live four and a half 
miles south of La Salle. I am a farmer; forty-two years 
old, and have lived in this country twenty years next 
spring; farmed land belonging to the La Salle County 


o01 


2563 Carbon Coal Company. I am a Belgian. The land I 
farmed would be west of the Illinois Central right of 
way and south and east of the river. I started farming 
that in 1906. I farmed it six years straight. I quit last 
year. I think I planted about sixty acres in 1906. I got 
in on the ground about May. It was a dry year; got a 
pretty good crop; corn matured and got good corn. I 

2065 was there in 1907. After the first year I got in pretty 
late every year. I got about the same amount of land 
into crop. After the first year I wasn’t able to get as 
much land planted. I had one pretty bad year in there. 

2566 I had only about thirty acres in there one year. I am 
not sure if it was the second or third. I planted pretty 
near the same amount every year except the first year. 
The last five years I raised poor corn. It was soft corn; 
eorn that would not keep in the crib. We got off the 
corn pretty early last year on account of the water com- 

2567 ing up. I got all the help I could and got it out. I think 
the water came up in November. I didn’t farm it this 
year. 


Cross-Examination by Mr. Chiperfeld. 


2568 In 1906 I think I raised around 3,300 bushels on about 
sixty acres. I kept the corn until it froze up and shelled 
it when it was froze up. I shipped it. I don’t remember 
the price I got for it. I think the bad year I had was 
the second or third year. I think it was 1907. It was a 
very wet year; got in about thirty acres that year. I 

2569 got about 1,800 bushels of corn off the thirty acres. 
We shipped the corn that year. We got about forty to 
forty-five acres in 1908 and in the other years that I was 
there. I got a couple of times about 2,500 or 3,000 bush-. 
els from the forty-five acres planted. I shipped it every 

2570 year. Mr. Caskert shipped it for us. He said it didn’t 
gerade at all. We got around 50 cents a bushel for it. 
We started to work on there about the 15th of June in 


502 


every year. The water was off by the first of June. The 

water never came up before the first of November. Yes, 

we could cultivate it all right. I don’t think that corn 
2571 ripens quicker on the bottoms than it does on top lands. 

I was farming right along the Illinois River. I think 

the river was maybe six or eight feet below this tand. 
2572 That is, the low water in the summer time. 

Rena SmitH, a witness called for the plaintiff, testified 

as follows: 


Direct Examination by Mr. O’Conor. 


My name is Rena Smith. I am thirty-eight years old. 
I have lived in this country about twenty-three years. 
2573 I live on the coal company’s place across the river. I 
am farming some land this year on the bottoms for 
them. It is on the west side of the Illinois Central. I 
never saw Exhibit 13 before. The land I am farming 
is south from the river and west from the Central. I 
have husked corn in on this land before this year; never 
actually farmed it. This year I have plowed the land 
in spots; got in on the land about the first of June. There 
2974 was water in places. It took me about three weeks to 
2575 do my plowing. Got in about forty-three acres; planted 
it to corn. I husked some of that corn this year. The 
condition of it is soft. It can’t get ripe, you know. I 
had to plant some of my corn over on account of the 
worms eating it; about half of the corn is soft. I planted 
2076 the corn late. 


Cross-Examination by Mr. Chiperfield. 


2577 Those worms I mentioned were copper worms. I think 
that the water brings the worms there. I think 
the water produces the worms. On the high spots there 
is no worms; just where the water stayed long. I haven’t 


503 


2578 all my corn husked yet this year. I think I will have 
about 1,800 bushels when I get it. I haven’t hauled any 
of it to market as yet. The company have to come and 
measure the crop. I have about 700 bushels picked; pay 
one-third rent to the coal company. No water came up 
on the corn in June this year after the land was planted. 

20/9 There is no water there now. It was a late spring for 
planting corn on the top land. I think that it takes 

2580 about the same time to raise a crop on the bottoms that 
it does on the uplands. 

2581 ‘The following proceedings were had out of the presence 
of the jury: 

Mr. O’Conor: We wish to strike from the declaration 
concerning which no proof has been offered in this case, 
that part of the southwest quarter and the southeast 
quarter of Section 14, lying south of the Illinois and 
Michigan Canal. Also Lots A and B of Canal Com- 

2582 missioners’ Subdivision of Section 15, and in each 
eount they are out. 

Motion granted. 

Mr. O’Conor: I don’t want any mistake as to Exhibit 
13. We would like the record to show that the 19.25 
acres lying north and west of the Illinois River, in Sev- 
tion 23, are not included in the declaration and are not 
owned by the plaintiff and appear on the exhibit inad- 
vertently. | 

Mr. CuiperFIELD: We understand that is so, so there 
is no question about that. 

9583 The Court: Well, that is disposed of, then. 

Mr. O’Conor: I also wish to strike from the declara- 
tion the north 17.74 acres as shown on Exhibit 13 lo- 
eated north of the bayou in the northeast quarter of 
Section 21 and south of the Illinois and Michigan Canal. 

Mr. CHIPERFIELD: No objection to that. 

The Court: Motion granted. 


504 


Mr. O’Conor: In order that there may be no mistake 
about it, | wish the record to show that we are claiming 
no damage and have made no proof in relation to the 
1.10 acres appearing on Exhibit 13 and located in the 
southwest quarter of Section 23, east of the Illinois Cen- 
tral right of way. | 


I wish the record to show we are making no claim and 
have offered no proof in relation to any part of the south 
half of the southeast quarter of section 23, except the 
north four and one-half acres of the south half of the 
southeast quarter. 


I simply want to introduce in evidence at this time 
offer simply to be filed in the case order served on the 
district by Mr. O’Donnell. I presume I can do it at this 
time as well as at a later date. I think the statute, as 

2584 it is now, provides that you can file the notice at the 
time motion is made for allowance of attorney’s fees 
under the statute. Mr. O’Donnell is not here. His cer- 
tificate appears here. 


Mr. CHIPERFIELD: Well, now, we have certain notices 
which were served. I have them all in my possession 
and I will have Mr. Hawthorne compare, if you will let 
him take your notice, will have him compare them with 
ours and, if in accord with what we have, we will admit 
it without formal proof. 

Whereupon said paper was marked for identification 
Exhibit 21. 

2585 Mr. O’Conor: And we are introducing this simply to 
have it for use at a later date. 

Mr. CurperFieLp: Until the comparison is made, 1 
would like to reserve the right to make objections, with 
the understanding the objections shall be made as of this 
time. 3 

The Court: Very well. 


505 


Mr. Curperrretp: I would like to have a chance to in- 
spect it. 

The Court: All right. 

Mr. Curperrirtp: There are certain things I want to 
use there a minute when you are through. Where do 
you get title, gentlemen, as far as papers are concerned, 
to anything north of the north half of this piece of ground 
extending from here to the bayou, of the northwest quar- 
ter of 212 We have looked through your deeds with great 
care— 

Mr. O’Conor: I have looked that up. 

2586 Mr. Curpsrrirtp: We cannot find any title at all of 
any kind for anything north of the half line there. 

Mr. O’Conor: I checked that up with the deeds and 
find that the deeds themselves do not cover that by des- 
eription. The deeds were made in the year 1883 and we 
elaim under the proof in this case, possession has been 
established since that date, the year 1883; adverse pos- 
session and the payment of taxes all the way from that 
date down to this. 

Mr. Cureerrretp: You see the title was not in you 
until after— 

The Court: No sir. 

Mr. CurprerFIeLD: The title would not ripen until after 
the cause of action accrued as to that, even on the theory 
of adverse possession. It would be an acquisition of 
title after, and even on that theory in 1903— 

The Court: Isn’t it described in any of your deeds? 

Mr. CurpeerFieitp: It is not. 

The Court: No color of title to it? 

“Mr. O’Conor: Ag a matter of record? 

The Court: Yes, is there any paper? 

Mr. O’Conor: No paper title. | 

The Court: Of any kind; no color of title? 

Mr. Curprerrretp: No, absolutely none, unless we are 


506 


totally wrong in our inspection of these deeds. There 
2587 is no titie in this record that can be pointed out to that 

piece of ground. 

The Court: How many acres? 

Mr. O’Conor: The deeds don’t cover that on our 
checking? 

Mr. CuiperFieLD: They don’t on ours. 

Mr. O’Conor: That piece that lies up here in this 
north half of 21. 

The Court: How many acres are there in there? 

Mr. CHIPERFIELD: Somewhere around eighteen or 
twenty. I would not pretend to say exactly, but that is 
our figure on it. 

The Court: Do you claim adverse possession, pay- 
ment of taxes since 1883? 

Mr. O’Conor: 1883, yes. 

The Court:. Yes, to— 

Mr. Cuiperriretp: This would be 1903. 

Mr. O’Conor: Up to the present date. 

Mr. Burrers: We claim possession under claim of 
ownership. ; 

Mr. CHIPERFIELD: Even that would not ripen until 
after. 

Mr. Burrers: The cases all hold that where there is 
a continuity of possession for the twenty years, it makes 
a good title. 

Mr. CuiperrieLtp: It makes a good title but you get 
your title to this after the cause of action has accrued, 

2588 and that is held to be at the opening of the district, and 

title acquired after that would not be the basis of the 
suit. | 

Mr. Burrers: I can own land and get title to it by 
verbal contract, without any writing at all, and maintain 
a trespass for damages to it. 

Mr. CurperFIELD: Well, that is not the question. 


507 


Mr. Burtrers: The 6th Appellate holds that. 

The Court: Well, that is— 

Mr. CuriperFirytp: The question that we have got to 
settle here— 

The Court: I see what the point is. 

Mr. Curperrietp: I have a motion that. I just wanted 
to inquire for their position, if their position was any 
different from ours. 

Mr. O’Conor: You mean as to whether or not it is cov- 
ered by the deeds? 

Mr. CHIPERFIELD: Yes. 

Mr. O’Conor: No, it is not. 

Mr. CureerFietp: Well, that is understood then. I just 
wanted to see if there was any difference in the fact, be- 
fore we go to the question of law. 

2589 The Courr: I think the pleas remain unaffective, the 
pleadings, on a motion to strike out. 
2590 Mr. Burrers: We want to introduce the notice. 

Mr. CuHrPerFIELD: Oh, yes, but I want to check it up 
and put in the objections. It is understood it would be 
put in as of this date. 

Mr. Butters: You don’t object to the service? 

Mr. CuHIPerFIELD: We have to get the originals. 

The arrangement was this, we have the originals in 
our possession, a copy was served and Mr. Hawthorne 
is going to compare it with yours, as to the service, so 
that we will have the same rights as we would have as 

2591 of this time. 

Mr. Curperrietp: Now, I have some motions, your 
Honor, while the jury is out that I would like to have 
appear to be made after these deeds are read, but it 
will save time, we can save time by taking that up now. 

The Court: Very well. 

Mr. CurperrieLp: But I want them considered as com. 
ing at the end of all the evidence. 


508 


The Court: Very well. 

Mr. CHIPpERFIELD: Now I want to move to exclude from 
the consideration of the jury Exhibit 1, for the reason 
that the same does not tend to prove the plaintiff’s cause 
of action; that the said exhibit creates a variance be- 
tween the allegations of the declaration and the proof 
offered; for the further reason that there is no proper 
foundation appearing in this record for the admission 
of said exhibit; because the same does not relate to the 
premises described in plaintiff’s declaration; because the 
same does not tend to establish ownership in the plain- 
tiff; because there is no sufficient proof of the execution 
of the same; because the same is not properly acknowl- 
edged. 

Exhibit 3, is that the deed from the Illinois Valley - 
Company? 

Mr. O’Conor: Yes. 

Mr. CureerFietp: All right I want the same objection 
to stand, and you will write it, Mr. Reporter, with the 

2592 permission of the court, write up the record as to Ex- 
hibits 3, 4, 5, 6 and 7, 8 and 9, have the objection re- 
stated to each of these exhibits. And also restated as 
to Exhibit 3, with the further addition, that Exhibit 3 
does not purport to contain a description of the prem- 
ises but refers to other deeds therein named which have 
not been properly or sufficiently identified as connected 
with the premises involved in this proceeding. 

2593 Mr. CurprerFirtp: I think I had better state all the 
motions at onee while I am about it. 

The Courr: No, I think we had better take them one 
at a time. I will overrule that motion. 

To which ruling of the court the defendant uae its 
counsel then and there duly excepted. 

Mr. O’Conor: I understand Exhibits 3, 4, 5, 6, 7,°8 
and 9 are admitted in evidence by the court. | 


509 


The Court: Those are the ones that have been ad- 
mitted, as I understand it. 

Mr. Curperrietp: Mr. Reporter, in your record put 
in 8. I don’t think I had it in my typed copy here. I 
want it to state as to 8, too. What was Exhibit 2? 

Mr. O’Conor: The charter of incorporation. 

Mr. CuIperrietp: Oh, yes. 

Mr. O’Conor: Do I understand these are in evidence? 

The Courr: The deeds? I ruled before that the deeds 
went in. 

Mr. Cuiperrietp: This is a motion to exclude on the 
theory they are in. 

The Court: Yes, I understand. I think I will over- 
rule the motion. 7 

Mr. CuIPERFIELD: As to each? - 

The Court: Ags to each of them: Repeat the motion 
to each and repeat the ruling to each motion. 

2594 Mr. Curperrirtp: We move to exclude from the con- 
sideration of the jury Exhibit 3 for the reason that it 
does not tend to prove plaintiff’s cause of action, that 
it creates a variance between the allegations of the deec- 
laration and the proof offered; because there is no proper 

' foundation appearing in this record for the admission of 
said exhibit; because it does not relate to the premises 
deseribed in plaintiff’s declaration; because the same 
does not tend to establish ownership in the plaintiff; be- 
cause there is no sufficient proof of the execution of same; 
because same is not properly acknowledged; that said 
exhibit does not purport to contain description of the 
premises but refers to other deeds therein named which 
have not been properly or sufficiently identified as con- 
nected with the premises involved in this proceeding. 

The Court: I will overrule the motion. 

To which ruling of the court the defendant by its 
counsel’then and there duly excepted. 


510 


Mr. CuIPeRFIELD: We move to exclude from the con- 
sideration of the jury Exhibit 4 for the reason it does not 
tend to prove plaintiff’s cause of action; that it creates 

2595 a variance between the allegations of the declaration 
and the proof offered; because there is no proper founda- 
tion appearing in this record for the admission of said 
exhibit; because it does not relate to the premises des- 
eribed in plaintiff’s declaration; because the same does 
not tend to establish ownership in the plaintiff; because 
there is no sufficient proof of the execution of the same; 
because same is not properly acknowledged. 

The Court: I will overrule the motion. 

To which ruling of the court the defendant by its 
counsel then and there duly excepted. 

Mr. CHIPERFIELD: We move to exclude from the con- 
sideration of the jury Exhibit 5 for the reason that it 
does not tend to prove plaintiff’s cause of action; that it 
creates a variance between the allegations of the dec- 
laration and the proof offered; because there 1s no proper 
foundation appearing in this record for the admission 

2596 of said exhibit; because it does not relate to the prem- 
ises described in plaintiff’s declaration; because the same 
does not tend to establish ownership in the plaintiff; be- - 
eause there is no sufficient proof of the execution of the 
same; because same is not properly acknowledged. 

The Court: I will overrule the motion. 

To which ruling of the court the defendant by its 
eounsel then and there duly excepted. 

Mr. CurperrieLp: We move to exclude from the con- 
sideration of the jury Exhibit 7 for the reason that it 

2597 does not tend to prove plaintiff’s cause of action; that 
it creates a variance between the allegations of the dec- 
laration and the proof offered; because there is no proper 
foundation in this record for the admission of said ex- 
hibit; because it does not relate to the premises des- 


511 


eribed in plaintiff’s declaration; because the same does 
not tend to establish ownership in the plaintiff; because 
there is no sufficient proof of the execution of the same; 
because same is not properly acknowledged. 

The Court: I will overrule the motion. 

To which ruling of the court the defendant by its 
counsel then and there duly excepted. 

Mr. CHIPERFIELD: We move to exclude from the con- 
sideration of the jury Exhibit 8 for the reason that it 

-does not tend to prove plaintiff’s cause of action; that it 
ereates a variance between the allegations of the dec- 
laration and the proof offered; because there is no pro- 
per foundation appearing in this record for the admis- 
sion of said exhibit; because it does not relate to the 
premises described in plaintiff’s declaration; because the 
same does not tend to establish ownership in the plain- 
tiff; because there is no sufficient proof of the execution 
of the same; because same is not properly acknowledged. 

2598 The Court: I will overrule the motion. 
To which ruling of the court the defendant by its 
counsel then and there duly excepted. 

Mr. CuipPerFieLD: We move to exclude from the con- 
sideration of the jury Exhibit 9 for the reason that it 
does not tend to prove plaintiff’s cause of action; that 
it creates a variance between the allegations of the dec- 
laration and the proof offered; because there is no pro- 
per foundation appearing in this record for the admission 
of said exhibit; because it does not relate to the prem- 
ises described in plaintiff’s declaration; because the 
same does not tend to establish ownership in the plain- 
tiff; because there is no sufficient proof of the execution 
of the same; because same is not properly acknowledged. 

The Court: I will overrule the motion. 

To which ruling of the court the defendant by its 
counsel then and there duly excepted, 


912 


2599 Mr. CHIPeRFIELD: We desire to move to exclude from 
the consideration of the jury the testimony of each and 
every witness upon the part of the plaintiff, with refer- 
ence to the overflow of plaintiff’s premises or to the in- 
jury of any crop, or of the condition of any crop, or of 
the value of any crop, or of the use to which plaintiff 
might have put such premises since the 17th day of Janu- 
ary, 1900. 

The theory on which this motion is made is that the 
eause of action of the plaintiff became completed upon 
putting into operation the permanent use of the improve- 
ment authorized by the statute. 

The Court: I think I will overrule that motion. 

To which ruling of the court the defendant by its 
counsel then and there duly excepted. 

Mr. CuIPerFIELD: Now, I wish to move to exclude from 
the consideration of the jury the testimony of each and 
every witness upon the part of the plaintiff, with refer- 
ence to the overflow of the plaintiff’s premises or to the 
injury to any crop, or of the condition of any crop, or 
the value of any crop, or of the use to which plaintiff 
might have put such premises since the lst day of July, 
1902. 

The theory on which this motion is made is that prior 

2600 to the Ist day of July, 1902, the operation of the dis- 
trict was such that the effect of the use of the improve- 
ment was plainly perceptible. 

The Court: I think I will overrule the motion. 

To which ruling of the court the defendant by its 
counsel then and there duly excepted. 

Mr. Cuiprerrigetp: Now, we desire to move to exclude 
from the consideration of the jury the testimony of every 
witness upon the part of the plaintiff with reference to 
the overflow of plaintiff’s premises, or to the injury of 
any crop, or of the condition of any crop, or of the value 


O13 


of any crop, or of the use to which the plaintiff might 
have put such premises 





What is the date of the praecipe in this case? Isn’t it 
the 11th? The summons is dated the 14th. —since the 
14th day of January, 1905. 

The theory on which this motion is made is that the 
cause of action at that time became complete and that if 
there is a recovery by the plaintiff it must be upon those 
causes of action which had accrued and those injuries 
which had been done prior to the date of the issuance of 
the summons In this ease. 

The Court: I think I will overrule that motion. 

To which ruling of the court the defendant by its 
counsel then and there duly excepted. 

Mr. CureerFieLtp: Now, we desire to move to strike out 
and exclude from the consideration of the jury any and 
all evidence with reference to all overflow of the land in 
controversy in this case, for the reason that it 1s not 
shown by the evidence upon the part of the plaintiff 
what part, if any, of this overflow the defendant in this 
‘ease is responsible for, but puts the burden of proof upon 
the defendant in this case to show what the quantity of 
overflow. was and to determine where the responsibility 
for such overflow rested. 

The Court: J think I will overrule the motion. 

''o which ruling of the court the defendant by its 
counsel then and there duly excepted. 

Mr. CurperrieLD: We desire to move to exclude all 
the evidence of each and every witness with reference to 
injury to any crops upon the premises in question for 
the years 1900, 1901, 1902, 1903, 1904, 1905, 1906, 1907, 
1908, 1909, 1910, 1911 and 1912. 

Mr. Burrers: Read that to me, please. 

Mr. CurperFieLp: We desire to move to exclude all the 
evidence of each and every witness with reference to in- 


014 


Jury to any crops upon the premises in question for the 
years 1900, 1901, 1902 and then down to and including 
1912: 

The Court: I think I will overrule the motion. 

To which ruling of the court the defendant by its 
2602 counsel then and there duly excepted. 

Mr. CuIPerRFIELD: Now, then I want to restate that 
motion separately for each year. 

The Court: Very well. 

Mr. CureerFietp: That will be restated as many times 
as there are years from 1900 to 1912, inclusive. 

The Court: And you may repeat my ruling. 

Mr. CHIPERFIELD: We desire to move to exclude all of 
the evidence of each and every witness with reference 
to injury to any crops upon the premises in question, for 
the year 1900. 

The Court: I think I will overrule the motion. 

To which ruling of the court the defendant by its 
counsel then and there duly excepted. 

Mr. CHIPERFIELD: We desire to move to exclude all of 
the evidence of each and every witness with reference 
to injury to any crops upon the premises in question, 
for the year 1901. 

The Court: I think I will overrule the motion. 

To which ruling of the court the defendant by its 
counsel then and there duly excepted. 

Mr. CHIPERFIELD: We desire to move to exclude all of 
the evidence of each and every witness with reference to 
injury to any crops upon the premises in question, for 
the year 1902. 

2603. The Court: I think I will overrule the motion. 
To which ruling of the court the defendant by its 
counsel then and there duly excepted. 

Mr. Curprerrigtp: We desire to move to exclude all of 
the evidence of each and every witness with reference to 


o15 


injury to any crops upon the premises in question, for 
the year 1903. 

The Court: I think I will overrule the motion. 

To which ruling of the court the defendant by its 
counsel then and there duly excepted. 

Mr. Cuiperrietp: We desire to move to exclude all 
of the evidence of each and every witness with reference 
to injury to any crops upon the premises in question, for 
the year 1904. 

The Court: I think I will overrule the motion. 

To which ruling of the court the defendant by its 
counsel then and there duly excepted. 

Mr. Curpsrrie.p: We desire to move to exclude all of 
the evidence of each and every witness with reference 
to injury to any crops upon the premises in question, for 
the year 1905. 

The Court: I think I will overrule the motion. 

To which ruling of the court the defendant by its 
counsel then and there duly excepted. 

Mr. CHIPERFIELD: We desire to move to exclude all 

2604 of the evidence of each and every witness with reference 
to injury to any crops upon the premises in question, for 
the years 1906. 

The Court: I think I will overrule the motion. 

To which ruling of the court the defendant by its 
counsel then and there duly excepted. 

Mr. CHIPERFIELD: We desire to move to exclude all 
of the evidence of each and every witness with reference 
to injury to any crops upon the premises in question, for 
the year 1907. 

The Court: J think I will overrule the motion. 

To which ruling of the court the defendant by its 
counsel then and there duly excepted. 

Mr. Cuiperrietp: We desire to move to exclude all 
of the evidence of each and every witness with reference 


516 


to injury to any crops upon the premises in question, for 
the year 1908. 

The Court: I think I will overrule the motion. 

T'o which ruling of the court the defendant by its 
counsel then and there duly excepted. 

Mr. CurperFieLp: We desire to move to exclude all 
of the evidence of each and every witness with reference 
to injury to any crops upon the premises in question, for 
the year 1909. 

2605 the Court: I think I will overrule the motion. 
To which ruling of the court the defendant by its 
counsel then and there duly excepted. 

Mr. CHIPERFIELD: We desire to move to exclude all 
of the evidence of each and every witness with reference 
to injury to any crops upon the premises in question, for 
the year 1910. 

The Court: I think I will overrule the motion. 

To which ruling of the court the defendant by its 
counsel then and there duly excepted. 

Mr. CurpErRFIELD: We desire to move to exelude all 
of the evidence of each and every witness with reference 
to injury to any crops upon the premises in question, for 
the year 1911. 

The Court: I think I will overrule the motion. 

To which ruling of the court the defendant by its 
counsel then and there duly excepted. 

Mr. CHIpErRFIELD: We desire to move to exclude all 
of the evidence of each and every witness with reference 
to injury to any crops upon the premises in question, for 
the year 1912. 

The Court: I think I will overrule the motion. 

To which ruling of the court the defendant by its 

counsel then and there duly excepted. 
2606 Mr. Curprerrretp: We also desire to move to exclude 
from the consideration of the jury all of the testimony 


O17 


in reference to the quality of crops raised upon the lands 
in controversy at any time either prior to or subsequent 
to the filing of the declaration in this suit, for the reason 
that the same is incompetent, irrelevant and immaterial, 
and does not tend to establish any of the issues in this 
case. 

The Courr: I think I will overrule the motion. 

To which ruling of the court the defendant by its 
counsel then and there duly excepted. 

Mr. CuiperFIeLD: We move to exclude from the con- 
sideration of the jury all of the following described prem- 
ses: 

All of the north half— 

The Court: Let me see what this is. 

Mr. Cmperrrietp: That is this piece where there is no 
title. 

The Court: I see. 

Mr. Cuipsrrisytp: All of the north half of the north- 
west quarter of section 21, township 33 north, range 1 
east of the 3d principal meridian, lying south of the [- 
linois River and east of the bayou, as the same appears 
upon Exhibit 13. 

Now, in that matter if your Honor meas I don’t care 
to argue it because the matters are known to the court 

2607 and the court is as well advised without any argument 
from us as it would be with it. That is a part where 
there is absolutely no record of title in this case. We 
are denying especially ownership. 

The Courr: That is the case where if they have any 
title by adverse possession it matured subsequent to the 
commencement of this suit? 

Mr. CureeRFIELD: Yes, sir. 

The Court: Subsequent to the— 

Mr. CurperFieLD: Seventeenth day of January, 1903. 

The Court: I think I understand it. 


518 


Mr. CurperFieLtp: All right. 


The Court: I am inclined to think I ought to over- 
rule that motion, although I am not as well advised on 
the proposition as I ought to be, but I will allow the mo- 
tion to stand as overruled for the present. If I conclude 
hereafter to reverse that I will notify both sides to that 
effect. . 

To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 


Mr. CHIPERFIELD: I also want to move to exclude from 
the consideration of the jury the following described 
premises: 


Lot 2 in the west half of the southwest quarter of Sec- 
tion 24, Township 33 North, Range 4, east of the Third 
Principal Meridian, La Salle County, Illinois, for the 

2608 reason that no proof has been offered in this case to 
sustain the allegations of the declaration with reference 
thereto. 

That is this little piece down here by the river and 
lying east of the C., B & Q. Railroad. 

The Courr: No proof has been offered touching that? 

Mr. Curperrietp: There has been no proof offered 
upon that land. 

The Court: I am not prepared to speak with confi- 
dence in that matter. I must necessarily trust the judg- 
ment and advice of plaintiff’s lawyers on that subject. 

Mr. O’Conor: If there is any doubt on that I want that 
witness to come back, your Honor. 

Mr. CurperFIeLpD: I have no objection to that. 

The Courr: Well, the record will show, if you want 
the record written up. 

Mr. O’Conor: I beg pardon. 

The Court: The record will show if you want the rec- 
ord written up. You can see it. 


O19 


Mr. O’Conor: He will get away at ten minutes to 
twelve. 

And the court sustained said objection and excluded 
from the consideration of the jury the evidence as 
to lot 2 in the west half of the southwest quarter 
of Section 24, Township 33 North, Range 1 east 
of the Third Principal Meridian, La Salle County, 
Illinois. 


2609 Mr. Curprrrietp: We move to exclude from the testi- 
money in this case the testimony of W. A. Means upon 
the question of the value of the premises described in 
the plaintiff’s declaration for the following reason: 

Furst. That no sufficient foundation has been laid for 
the testimony of said witness for the expression of an 
opinion as to the fair cash market value. 

Second. That said witness in the giving of said testi- 
mony has shown no such acquaintance with the premises 
and values of real estate in that vicinity as to qualify 
him for the expression of an opinion thereon. 

Third. That said witness in his expression of opinion 
did not state, or attempt to state, the fair cash market 
value of the premises involved. 

Fourth. That in the expression of such opinion said 
witness adopted an wunproper basis; that is to say, that 
said witness expressed an opinion as to the value of said 
land merely from the standpoint of what the said land 
would produce for agricultural purposes, without refer- 
ence to its real or actual fair cash market value. 

Fifth. That the said witness did not include in the 

2610 estimation of the value of said premises the coal con- 
tained therein, but did exclude the same from his opinion 
and refused to consider the value thereof. 

Siath. That the said witness did not exclude from the 
fair cash market value of said land the various excep- 
tions and reservations contained in said deeds which 


520 


have been introduced by the plaintiff in this case, for the 
purpose of attempting to prove title, but did place a 
value on said premises without regard to said exceptions 
or reservations as therein contained. 

Seventh. That said witness refused to consider the 
fair eash market value of said premises from the stand- 
point of the highest and best use that could be made 
thereof, 

Eighth. That said witness in the expression of an opin- 
ion as to the values given by him merely took into con- 
sideration the value of said premises from the stand- 
point of the use and adaptability of said premises for 
the purpose of raising corn. 

Ninth. That in the expression of said opinion as to 
values said witness was permitted to take into considera- 
tion everything which he knew about said premises until 
the date of the giving of his testimony with reference 
to the value thereof, without disclosing the basis thereof 
to the court, the jury or counsel, but was permitted and 

2611 required to state an opinion upon the basis of matters 
which were known only to himself and not disclosed upon 
this hearing. 

Tenth, That said witness in the expression of his 
opinion was permitted to take into consideration the con- 
dition of said premises subsequent to the date of the fil- 
ing of the declaration herein, to-wit, the 14th day of Jan- 
uary, 1905, and up to and including the time of the giv- 
ing of his testimony. 

Eleventh. That the said witness in the expression of 
his opinion as to the injury of the premises involved here- 
in was required to take into consideration all overflow of 
the premises described in the plaintiff’s declaration with- 
out reference to whether or not such overflow was caused 
by acts under the discretion and control of the defendant 
to this suit, but was permitted to assume that all the in- 


O21 


jury which they claim had occurred to the said premises 
was caused by the act of the defendant herein. 

Mr. Burrers: Whose testimony is that? 

Mr. CurperFieLpD: That is W. A. Means. 

The Court: I think I will overrule that motion. 

To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 

Mr. CurperFicLtp: I want to repeat that same motion 

2612 to Joseph Grainer, Henry Ream, Henry Myer, Charles 
Mudge, Ed. Pyka, Charles Castendyck, Otto Halm, George 
W. Brown, Fred A. Mudge, M. J. Charley, Abraham 
Voorhees, Charles Dooley—what was the name of that 
Mudge who was on the stand later? 

Mr. O’Conor: Fred Mudge. 

Mr. CutreerFieLp: Oh, yes, I have got the other Mudge 
in there. That is all right. 1 want to repeat that, the 
full motion, in reference to each and every one of those 
witnesses, so you will please repeat it each time. 

The Court: And you will repeat my ruling. 

Mr. CurprrFieELD: We move to exclude from the testi- 
mony in this case the testimony of Joseph Grainer upon 
the question of the value of the premises described in 
the plaintiff’s declaration, for the following reasons: 

First. That no sufficient foundation has been laid for 
the testimony of said witness for the expression of opin- 
ion as to the fair cash market value. 

Second. That said witness in the giving of said testi- 
mony has shown no such acquaintance with the premises 
and values of real estate in that vicinity as to qualify 
him for the expression of an opinion thereon. 

Third. That said witness in his expression of opinion 
did not state or attempt to state the fair cash market 
value of the premises involved. 

2613 Fourth. That in the expression of such opinion said 
witness adopted an improper basis; that is to say, that 


522 


said witness expressed an opinion as to the value of 
said land merely from the standpoint of what the said 
land would produce for agricultural purposes without 
reference to its real or actual fair cash market value. 

Fifth. That the said witness did not include in the es- 
timation of the value of said premises the coal that was 
contained therein, but did exclude the same from his 
opinion and refused to consider the value thereof. 

Siath. That said witness did not exclude from the 
fair cash market value of said land the various exceptions 
and reservations contained in the said deeds which had 
been introduced by the plaintiff in this case, for the pur- 
pose of attempting to prove title, but did place a value 
on said premises without regard to said exceptions or 
reservations as therein contained 

Seventh. That said witness refused to consider the 
fair cash market value of said premises from the stand- 
point of the highest and best use that could be made 
thereof. 

Eighth. That said witness in the expression of opinion 
as to values given by him merely took into consideration 
the value of said premises from the standpoint of the 

2614 use and adaptability for the purpose of raising corn. 

Ninth. That in the expression of said opinion as to 
the values said witness was permitted to take into con- 
sideration everything which he knew about said premises 
until the date of the giving of his said testimony with 
reference to the value thereof, without disclosing the 
basis therefor to the court or jury or counsel; but was 
permitted and required to state an opinion upon the basis 
of matters which were known only to himself and not 
disclosed upon this hearing. 

Tenth. That said witness in the expression of his 
opinion was permitted to take into consideration the con- 
dition of said premises subsequent to the date of the filing 


523 


of the declaration therein, to wit, the 14th day of Jan- 
uary, 1905, and up to and including the time of the giving 
of his testimony. 

Eleventh. That the said witness in the expression of 
his opinion as to the injury to the premises involved here- 
in was required to take into consideration the overflow 
of the premises described in the plaintiff’s declaration, 
without reference to whether or not such overflow was 
caused by acts under the discretion and control of the 
defendant to this suit, but was permitted to assume that 
all the injury which they claim had occurred to said 
premises was caused by the act of the defendant herein. 

The Court: I think I will overrule that motion. 

2615 To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 

Mr. CuHiperFiceLD: We move to exclude from the testi- 
money in this case the testimony of Henry Ream upon 
the question of values of the premises described in the 
plaintiff’s declaration for the following reasons: 

First. That no sufficient foundation has been laid for 
the testimony of said witness and the expression of opin- 
ion as to the fair cash market value. 

Second. That said witness in the giving of said testi- 
mony has shown no such acquaintance with the premises 
and value of real estate in that vicinity as to qualify 
him for the expression of an opinion thereon. 

Third. That said witness in his expression of opinion 
did not state or attempt to state the fair cash market 
value of the premises involved. 

Fourth. That in the expression of such opinion said 
witness adopted an improper basis; that 1s to say, that 
said witness expressed an opinion as to the value of said 
land merely from the standpoint of what the said land 
would produce for agricultural purposes, without refer- 
ence to its real or actual fair cash market value. 


024 


Fifth. That said witness did not include in the estima- 
tion of the value of said premises the coal that was cons 
tained therein, but did exclude the same from this opin. 

2616 ion and refuse to consider the value thereof, 

Sixth. That the said witness did not exclude from 
the fair cash market value of said land the various ex- 
ceptions and reservations contained in the said deeds 
which have been introduced by the plaintiff in this case 
for the purpose of attempting to prove title, but did 
‘place a value on said premises without regard to said 
exceptions or reservations therein contained. | 

Seventh. That said witness refused to consider the 
fair eash market value of said premises from the stand- 
point of the highest and best use that could be made 
thereof. 

Eighth. That said witness in the expression of opinion 
as to the value given by him merely took into considera- 
tion the value of said premises from the standpoint of the 
use and adaptability of said premises for the purpose 
of raising corn. 

Ninth. That in the expression of said opinion as to 
values said witness was permitted to take into considera- 
tion everything which he knew about said premises until 
the date of the giving of his said testimony with refer- 
ence to the value thereof, without disclosing the basis 
therefor to the court or Jury or counsel, but was permitted 
and required to state an opinion upon the basis of mat- 
ters which were known only to himself and not disclosed 

2617 upon this hearing. 

Tenth. That said witness in the expression of his opin- 
ion was permitted to take into consideration the condi- 
tion of said premises subsequent to the date of the filing 
of the declaration herein, to wit, the 14th day of Jan- 
uary, 1905, and up to and including the time of the giving 
of his testimony. 


525 


Eleventh. 'That the said witness in the expression of 
his opmion as to the injury to the premises involved 
herein was required to take into consideration the over- 
flow of the premises described in the plaintiff’s declara- 
tion, without reference to whether or not such overflow 
was caused by acts under the discretion and control of 
the defendant to this suit, but was permitted to assume 
that all of the injury which they claim had occurred to 
said premises was caused by the act of the defendant 
herein. 

The Court: I think I will overrule that motion. 

To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 

Mr. CureperFIELD: We move to exclude from the testi- 
mony in this case the testimony of Henry Myer upon the 
question of values of the premises described in the plain- 
tiff’s declaration for the following reasons: 

First. That no sufficient foundation has been laid for 
the testimony of said witness and the expression of the 

2618 opinion as to the fair eash market value. 

Second. That said witness in the giving of said testi- 
mony has shown no acquaintance with the premises and 
values of real estate in that vicinity as to qualify him 
for the expression of an opinion thereon. 

Third. That said witness in his expression of opinion 
did not state or attempt to state the fair cash market 
value of the premises involved. 

Fourth. That in the expression of such opinion said 
witness adopted an improper basis; that is to say, that 
said witness expressed an opinion as to the value of 
said land merely from the standpoint of what the said 
land would produce for agricultural purposes, without 
reference to its real, actual fair cash market value. 

Fifth. That said witness did not include in the assump- 
tion of the value of said premises the coal that was con- 


526 


tained therein, but did exclude the same from his opin- 
ion and refused to consider the value thereof. 

Sixth. That said witness did not exclude from the fair 
cash market value of said lands the various exceptions 
and reservations contained in the said deeds which have 
been introduced by the plaintiff in this case for the pur- 
pose of attempting to prove title, but did place a value 
on said premises without regard to said exceptions or 
reservations as therein contained. 

2619 Seventh. That said witness refused to consider the 
fair cash market value of said premises from the stand- 
point of the highest and best use that could be made 
thereof. 

Eighth. That said witness in the expression of opin- 
ion as to the values given by him merely took into con- 
sideration the value of said premises from the standpoint 
of the use and adaptability of said premises for the pur- 
pose of raising corn. 

Ninth. That in the expression of said opinion as to 
values said witness was permitted to take into considera- 
tion everything which he knew about said premises un- 
til the date of the giving of his said testimony, with ref- 
erence to the value thereof without disclosing the basis 
therefor to the court or jury or counsel, but was permitted 
and required to state an opinion which was based on 
matters which were known only to himself and not dis- 
closed upon this hearing. 

Tenth. That said witness in the expression of his opin- 
ion was permitted to take into consideration the condi- 
tion of said premises subsequent to the date of the filing 
of the declaration herein, to wit, on the 14th day of Jan- 
uary, 1905, and up to and including the time of the giving 
of his testimony. 

Eleventh. That the said witness in the expression of 

2620 his opinion as to the injury to the premises involved 


527 


herein was required to take into consideration the over- 
flow of the premises described in plaintiff’s declaration, 
without reference to whether or not such overflow was 
eaused by acts under the discretion and control of the 
defendant to this suit, but was permitted to assume that 
all of the injury which they claim had occurred to said 
premises was caused by the act of the defendant herein. 
The Court: I think I will overrule the objection. 
To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 


Mr. Cureerristp: We move to exclude from the testi- 
mony in this case the testimony of Charles Mudge upon 
the question of the value of the premises described in 
the plaintiff’s declaration for the following reasons: 

First. That no sufficient foundation has been laid for 
the testimony of said witness and the expression of the 
opinion as to the fair cash market value. 

Second. That said witness in the giving of said testi- 
mony has shown no such acquaintance with the premises 
and values of real estate in that vicinity as to qualify 
him for the expression of an opinion thereon. 

Third, That said witness in his expression of opinion 

2621 did not state or attempt to state the fair cash market 
value of the premises involved. 

Fourth. That in the expression of such opinion said 
witness adopted an improper basis. That is to say, that 
such witness expressed an opinion as to the value of said 
land merely from the standpoint of what the said land 
would produce for agricultural purposes, without refer- 
ence to its real or actual fair cash market value. 

Fifth. That the said witness did not include in the 
assumption of the value of said premises the coal that 
was contained therein, but did exclude the same from 
his opinion and refused to consider the value thereof. 

Siath. That the said witness did not exclude from the 


528 


fair cash market value of said lands the various excep- 
tions and reservations contained in the said deeds which 
have been introduced by the plaintiff in this case for the 
purpose of attempting to prove title, but did place a value 
on said premises without regard to said exceptions or 
reservations therein contained. 

Seventh. That said witness refused to consider the 
fair cash market value of said premises from the stand- 
point of the highest and best use that could be made 
thereof. 

Eighth. That said witness in the expression of opinion 

2622 as to the values given by him merely took into considera- 
tion the value of said premises from the standpoint of 
the use and adaptability of said premises for the purpose 
of raising corn. 

Ninth. That in the expression of said opinion as to 
values, said witness was permitted to take into considera- 
tion everything which he knew about said premises until 
the date of the giving of his said testimony, with refer- 
ence to the value thereof, without disclosing the basis 
therefor to the court or jury or counsel, but was permit- 
ted and required to state an opinion upon the basis of 
matters which were known only to himself and not dis- 
closed upon his hearing. 

Tenth. That said witness in the expression of his opin- 
ion was permitted to take into consideration the condi- 
tion of said premises subsequent to the date of the filing 
of the declaration herein, to wit, the 14th day of Jan- 
uary, 1905, and up to and including the time of the giving 
of his testimony. 

Eleventh. That the said witness in the expression of 
his opinion as to the injury to the premises involved 
herein was required to take into consideration the over- 
flow of the premises described in plaintiff’s declaration 
without reference to whether or not such overflow was 


529 


eaused by acts under the discretion and control of the 
2623 defendant in this suit, but was permitted to assume that 
all the injury which they claim had occurred to said 
premises was caused by the act of the defendant herein. 

The Court: I think I will overrule the motion. 

To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 

Mr. Cuiprerrigtp: We move to exclude from the testi- 
mony in this case the testimony of Ed Pyka upon the 
question of values of the premises described in the plain- 
tiff’s declaration for the following reasons: 

Furst. That no sufficient foundation has been laid for 

the testimony of said witness and the expression of an 
opinion as to the fair cash market value. 

Second. That said witness in the giving of said testi- 
mony has shown no such acquaintance with the premises 
and values of real estate in that vicinity as to qualify 
him for the expression of an opinion thereon. 

Third. That said witness in his expression of opinion 
did not state or attempt to state the fair cash market 
value of the premises involved. 

Fourth. That in the expression of such opinion said 
witness adopted an improper basis; that is to say, that 
said witness expressed an opinion as to the value of said 
land merely from the standpoint of what the said land 

2624 would produce for agricultural purposes without refer- 
ence to its real or actual fair cash market value. 

Fifth. That the said witness did not include in the 
assumption of the value of said premises the coal that 
was contained therein, but did exclude the same from his 
opinion and refused to consider the value thereof. 

Sixth. That the said witness did not exclude from the 
fair cash market value of said land the various excep- 
tions and reservations contained in the said deeds which 
have been introduced by the plaintiff in this case for the 


530 


purpose of attempting to prove title, but did place a value 
on said premises without regard to said exceptions or 
reservations therein contained. 

Seventh. That said witness refused to consider the 
fair cash market value of said premises from the stand- 
point of the highest and best use that could be made 

, thereof, 

Eighth. That said witness in the expression of opinion 
as to the values given by him merely took into considera- 
tion the value of said premises from the standpoint of 
the use and adaptability of said premises for the purpose 
of raising corn. 

Ninth. That in the expression of. said opinion as to 
values said witness was permitted to take into considera- 
tion everything which he knew about said premises until 

2625 the date of the giving of his said testimony with refer- 
ence to the value thereof, without disclosing the basis 
therefor to the court or Jury or counsel, but was permit- 
ted and required to state an opinion upon the basis of 
matters which were known only to himself and not dis- 
closed upon this hearing. 

Tenth, That said witness in the expression of his opin- 
ion was permitted to take into consideration the condi- 
tion of said premises subsequent to the date of the filing 
of the declaration herein, to wit, the 14th day of Jan- 
uary, 1905, and up to and including the time of the giving 
of his testimony. . 

Eleventh. That the said witness in the expression of 
his opinion as to the injury to the premises involved 
herein was required to take into consideration the over- 
flow of the premises described in the plaintiff’s declara- 
tion, without reference to whether or not such overflow 
was caused by acts under the discretion and control of 
the defendant to this suit, but was permitted to assume 
that all of the injury which they claim had occurred to 


531 


said premises was caused by the act of the defendant 
herein. 

The Court: I think I will overrule that motion. 

To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 

2625 Mr. CurprrrieLD; We move to exclude from the testi- 
mony in this case the testimony of Charles Castendyck 
upon the question of values of the premises described in 
the plaintiff’s declaration for the following reasons: 

First. That no sufficiént foundation has been laid for 
the testimony of said witness and the expression of the 
opinion as to the fair cash market value. 

Second, That said witness in the giving of said testi- 
mony has shown no such acquaintance with the premises 
and values of real estate in that vicinity as to qualify 
him for the expression of an opinion thereon. 

Third. That said witness in his expression of opinion 
did not state or attempt to state the fair cash market 
value of the premises involved. 

Fourth. That in the expression of such opinion said 
witness adopted an improper basis; that is to say, that 
such witness expressed an opinion as to the value of said 
land merely from the standpoint of what the said lands 
would produce for agricultural purposes without refer- 
ence to its real or actual fair cash market value. 

Fifth. That the said witness did not include in the as- 
sumption of the value of said premises the coal that was 
contained therein, but did exclude the same from his 

' opinion and refused to consider the value thereof. 

Sixth. That the said witness did not exclude from 
the fair cash market value of said land the various ex- 
ceptions and reservations contained in the said deeds 
which have been introduced by the plaintiff in this case 
for the purpose of attempting to prove title, but did place 
a value on said premises without regard to said excep- 
tions or reservations therein contained. 


532 


Seventh. That said witness refused to consider the 
fair cash market value of said premises from the stand- 
point of the highest and best use that could be made 
thereof. 


Highth. That said witness in the expression of opinion 
as to the values given by him merely took into considera- 
tion the value of said premises from the standpoint of 
the use and adaptability of said premises for the purpose 
of raising corn. 


Ninth. That in the expression of said opinion as to 
values said witness was permitted to take into considera- 
tion everything which he knew about said premises until 
the date of the giving of his said testimony with refer- 
ence to the value thereof, without disclosing the basis 
therefor to the court or jury or counsel, but was permit- 
ted and required to state an opinion upon the basis of 

2628 matters which were known only to himself and not dis- 
closed upon this hearing. 


Tenth. That said witness in the expression of his opin- 
ion was permitted to take into consideration the condi- 
tion of said premises subsequent to the date of the filing 
of the declaration herein, to wit, the 14th day of Jan- 
uary, 1905, and up to and including the time of the giving 
of his testimony. 


Eleventh. That the said witness in the expression of 
his opinion as to the injury in the premises involved 
herein was required to take into consideration the over- 
flow of the premises described in the plaintiff’s declara- 
tion, without reference to whether or not such overflow 
was caused by acts under the discretion and the control 
of the defendant to this suit, but was permitted to as- 
sume that all of the injury which they say had occurred 
to said premises was caused by the act of the defendant 
herein. 


533 


The Court: I think I will overrule that motion. 
To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 


Mr. Curperrigtp: We move to exclude from the testi- 
mony in this case the testimony of Otto Halm upon the 
question of values of the premises described in the plain- 
tiff’s declaration for the following reasons: 

2629 First. That no sufficient foundation has been laid for 
the testimony of said witness and the expression oe an 
opinion as to the fair cash market value. 

Second. That said witness in the giving of said testi- 
mony has shown no such acquaintance with the premises 
and values of real estate in that vicinity as to qualify him 
for the expression of an opinion thereon. 

Third. That the said witness in his expression of opin- 
ion did not state or attempt to state the fair cash market 
value of the premises involved. 

Fourth. That in the expression of such opinion said 
witness adopted an improper basis; that is to say, that 
such witness expressed an opinion as to the value of said 
land merely from the standpoint of what the said land 
would produce for agricultural purposes, without refer- 
ence to its real or actual fair cash market value. 

Fifth. That the said witness would not include in the 
assumption of the value of said premises the coal that 
was contained therein, but did exclude the same from his 
opinion and refused to consider the value thereof, 

Siath. That the said witness did not exclude from the 
fair cash market value of said land the various exceptions 
and reservations contained in the said deeds which have 
been introduced by the plaintiff in this case for the pur- 

2630 pose of attempting to prove title, but did place a value 
on said premises without regard to said exceptions or 
reservations therein contained. 

Seventh. That said witness refused to consider the 


534 


fair cash market value of said premises from the stand- 
point of the highest and best use that could be made 
thereof. 

Eighth. That said witness in the expression of opin- 
ion as to the values given by him merely took into con- 
sideration the value of said premises from the stand- 
point of the use and adaptability of said premises for the 
purpose of raising corn. 

Ninth. That in the expression of said opinion as to 
value ‘said witness was permitted to take into considera- 
tion everything which he knew about said premises until ~ 
the date of the giving of his said testimony with reference 
to the value thereof, without disclosing the basis therefor 
to the court or jury or counsel, but was permitted and 
required to state an opinion upon the basis of matters 
which were known only to himself and not disclosed upon 
this hearing. 

Tenth. That said witness in the expression of his opin- 
ion was permitted to take into consideration the condi- 
tion of said premises subsequent to the date of the filing 

2631 of the declaration herein, to wit, the 14th day of Jan- 
uary, 1905, and up to and including the time of the giving 
of his testimony. 

Eleventh. That the said witness in the expression of 
his opinion as to the injury to the premises involved 
herein was required to take into consideration the over- 
flow of the premises deseribed in plaintiff’s declaration 
without reference to whether or not such overflow was 
eaused by acts under the discretion and control of the 
defendant to this suit, but was permitted to assume that 
all of the injury which they claim had occurred to said 
premises was caused by the act of the defendant herein. 

The Court: I think I will overrule that motion. 

To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 


535 


Mr. Curperrietp: We move to exclude from the testi- 
mony in this case the testimony of George W. Brown, 
upon the question of values of the premises described in 
the plaintiff’s declaration for the following reasons: 

First. That no sufficient foundation has been laid for 
the testimony of said witness and the expression of an 
opinion as to the fair cash market value. 

Second. That said witness in the giving of said testi- 

2632 mony has shown no such acquaintance with the premises 
and value of real estate in that vicinity as to qualify him 
for the expression of an opinion thereon. 

Third. That said witness in his expression of opinion 
did not state or attempt to state the fair cash market 
value of the premises involved. 

Fourth. That in the expression of such opinion said 
witness adopted an improper basis; that is to say, that 
said witness expressed an opinion as to the value of said 
land merely from the standpoint of what the said land 
would produce for agricultural purposes, without refer- 
ence to its real or actual fair cash market value. 

Fifth. That the said witness did not include in the as- 
sumption of the value of said premises the coal that was 
contained therein, but did exclude the same from his opin- 
ion and refused to consider the value thereof. 

Sixth. That the said witness did not exclude from the 
fair cash market value of said land the various excep- 
tions and reservations contained in the said deeds which 
have been introduced by the plaintiff in this case for the 
purpose of attempting to prove title, but did place a 
value on said premises without regard to said exceptions 
or reservations therein contained. 

2633 Seventh. That said witness refused to consider the fair 
eash market value of said premises from the standpoint 
of the highest and best use that could be made thereof. 

Exghth. That said witness in the expression of opin- 


536 


ion as to the values given by him merely took into consid- 
eration the value of said premises from the standpoint of 
the use and adaptability of the said premises for the 
purpose of raising corns 

Ninth. That in the expression of said opinion as to 
values, said witness was permitted to take into considera- 
tion everything which he knew about said premises until 
the date of the giving of his said testimony with reference 
to the value thereof, without disclosing the basis there- 
for to the court or jury or counsel, but was permitted 
and required to state an opinion upon the basis of mat- 
ters which were known only to himself and not disclosed 
upon this hearing. 

Tenth. That said witness in the expression of his opin- 
ion was permitted to take into consideration the condi- 


tion of said premises subsequent to the date of the filing 
of the declaration herein, to wit, the 14th day of Jan- 
uary, 1905, and up to and including the time of the giving 
of his testimony. 
Eleventh. That the said witness in the expression of 
his opinion as to the injury to the premises involved here- 
2634 in was required to take into consideration the overflow 
of the premises described in plaintiff’s declaration with- 
out reference to whether or not such overflow was caused 
by acts under the discretion or control of the defendant 
to this suit, but was permitted to assume that all of the 
injury which they claim had occurred to said premises 
was caused by the act of the defendant herein. 
The Courr: I think I will overrule that motion. 
To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 


Mr. CurperFieLp: We move to exclude from the testi- 
mony in this case the testimony of Fred A. Mudge upon 
the question of the value of the premises described in 
the plaintiff’s declaration for the following reasons: 


. 037 


First. That no sufficient foundation has been laid for 
the testimony of said witness and the expression of an 
opinion as to the fair cash market value. 

Second. That said witness in the giving of said testi- 
mony has shown no such acquaintance with the premises 
and values of real estate in that vicinity as to qualify him 
for the expression of an opinion thereon. 


Third, That said witness in his expression of opinion 
did not state or attempt to state the fair cash market, 
value of the premises involved. 


Fourth. That in the expression of said opinion said 

2635 witness adopted an improper basis; that is to say, that 

said witness expressed an opinion as to the value of said, 

land merely from the standpoint of what the said land 

would produce for agricultural purposes, without refer- 
ence to its real or actual fair cash market value. 


Fifth. That the said witness did not inelude in the as- 
sumption of the value of said premises the coal that was 
contained therein, but did exclude the same from his 
opinion and refused to consider the value thereof. 


Sixth. That the said witness did not exclude from the 
fair cash market value of said land the various excep- 
tions and reservations contained in the said deeds which 
have been introduced by the plaintiff in this case for the 
purpose of attempting to prove title, but did place a value 
on said premises without regard to said exceptions or 
reservations therein contained. 


Seventh. That said witness refused to consider the 
fair cash market value of said premises from the stand- 
point of the highest and best use that could be made 
thereof. 


Eighth. That said witness in the expression of opin- 
ion as to the values given by him merely took into con- 
sideration the value of said premises from the standpoint 


038 


of the use and adaptability of said premises for the pur- 
2636 pose of raising corn. 

Ninth. That in the expression of said opinion as to 
values said witness was permitted to take into considera- 
tion everything which he knew about said premises until 
the date of the giving of his said testimony with refer- 
ence to the value thereof, without disclosing the basis 
therefor to the court or jury or counsel, but was permit- 
ted and required to state an opinion upon the basis of mat- 
ters which were known only to himself and not disclosed 
upon this hearing. 


Tenth. hat said witness in the expression of his 
opinion was permitted to take into consideration the con- 
dition of said premises subsequent to the date of the filing 
of the declaration herein, to wit, the 14th day of Jan- 
uary, 1905, and up to and including the time of the‘giving 
of his testimony. 

Eleventh. That the said witness in the expression of 
his opinion as to the injury to the premises involved 
herein was required to take into consideration the over- 
flow of the premises described in plaintiff’s declaration 
without reference to whether or not such overflow was 
eaused by acts under the discretion and control of the de- 
fendant to this suit, but was permitted to assume that all 
of the injury which they claim had occurred to said prem- 
ises was caused by the act of the defendant herein. 


°637 The Court: I think I will overrule the motion. 


To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 


Mr. Curperrrenp: We move to exclude from the testi- 
mony in this case the testimony of M. J. Charley, upon 
the question of value of the premises deseribed in the 
plaintiff’s declaration for the following reasons: 

Furst. That no sufficient foundation has been laid for 


539 


the testimony of said witness and the expression of an 
opinion as to the fair cash market value. 

Second, That said witness in the giving of said testi- 
mony has shown no such acquaintance with the premises 
and values of real estate in that vicinity as to qualify him 
for the expression of an opinion thereof. 

Third. That said witness in his expression of opinion 
did not state or attempt to state the fair cash market 
value of the premises involved, 

Fourth. That in the expression of such opinion said 
witness adopted an improper basis; that is to say, that 
said witness expressed an opinion as to the value of said 
land merely from the standpoint of what the said land 
would produce for agricultural purposes, without refer- 
ence to its real or actual fair cash market value. 

Iafth. That said witness did not inelude in the assump- 
tion of the value of said premises the coal that was con- 
tained therein, but did exclude the same from his opinion 

2635 and refused to consider the value thereof. 

Siath. That the said witness did not exclude from the 
fair cash market value of said land the various excep- 
tions and reservations contained in the said deeds which 
have been introduced by the plaintiff in this case for the 
purpose of attempting to prove title, but did place a value 
on said premises without regard to said exceptions or 
reservations therein contained. | 

Seventh. That said witness refused to consider the 
fair cash market value of said premises from the stand- 
point of the highest and best use that could be made 
thereof. 

Eighth. That said witness in the expression of opinion 
as to the values given by him merely took into considera- 
tion the value of said premises from the standpoint of 
the use and adaptability of said premises for the purpose 
of raising corn. 


540 


Ninth. That in the expression of said opinion as to 
values said witness was permitted to take into considera- 
tion everything which he knew about said premises until 
the date of the giving of his said testimony with reference 
to the value thereof, without disclosing the basis therefor, 
to the court or jury or counsel, but was permitted and 
required to state an opinion upon the basis of matters 
which were known only to himself and not disclosed upon 
this hearing. 

2639 Tenth. That said witness in the expression of his opin- 
ion was permitted to take into consideration the condi- 
tion of said premises subsequent to the date of the filing 
of the declaration herein, to wit, the 14th day of Jan- 
uary, 1905, and up to and including the time of the giving 
of his testimnoy. 

Eleventh, That said witness in the expression of his 
opinion as to the injury to the premises involved herein 
was required to take into consideration the overflow of 
the premises described in the plaintiff’s declaration witlt 
out reference to whether or not such overflow was caused 
by acts under the discretion and control of the defendant 
to this suit, but was permitted to assume that all of the 
injury which they claim had occurred to said premises 
was caused by the act of the defendant herein. 


The Court: I think I will overrule that motion. 
To which ruling of the court the defendant by its 
counsel then and there duly excepted. 


Mr. CutperFiIELD: We move to exclude from the testi- 
mony in this ease the testimony of Abraham Voorhees 
upon the question of values of the premises described in 
the plaintiff’s declaration for the following reasons: 

First. That no sufficient foundation has been laid for 
the testimony of said witness and the expression of an 
opinion as to the fair cash market value. 

2640 Second. That said witness in the giving of said testi- 


041 


mony has shown no such acquaintance with the premises 
and values of real estate in that vicinity as to qualify 
him for the expression of an opinion thereon. ; 

Third. That said witness in his expression of opinion 
did not state or attempt to state the fair cash market 
value of the premises involved. 

Fourth. That in the expression of such opinion said 
witness adopted an improper basis; that is to say, that 
such witness expressed an opinion as to the value of said 
land merely from the standpoint of what the said land 
would produce for agricultural purposes, without refer- 
ence to its real or actual cash market value. 

Fifth. That the said witness did not include in the as- 
sumption of the value of said premises the coal that was 
contained therein, but did exclude the same from his 
opinion and refused to consider the value thereof. 

Siath. That the said witness did not exclude from the 
fair cash market value of said land the various exceptions 
and reservations contained in the said deeds which have 
been introduced by the plaintiff in this case for the pur- 
pose of attempting to prove title, but did place a value 
on said premises without regard to said exceptions or 
reservations therein contained. 

Seventh. That said witness refused to consider the 
fair cash market value of said premises from the stand- 

2641 point of the highest and best use that could be made 
thereof. 

Eighth. hat said witness in the expression of opin- 
ion as to the values given by him merely took into con- 
sideration the value of said premises from the stand- 
point of the use and adaptability of said premises for 
the purpose of raising corn. 

Ninth. That in the expression of said opinion as to 
values said witness was permitted to take into considera- 
tion everything which he knew of said premises until the 


542 


date of the giving of his said testimony with reference to 
the values thereof, without disclosing the basis there- 
for to the court or counsel or Jury, but was permitted 
and required to state an opinion upon the basis of mat- 
ters which were known only to himself and not disclosed 
upon this hearing. 

Tenth. That said witness in the expression of his 
opinion was permitted to take into consideration the con- 
dition of said premises subsequent to the date of the 
filing of the declaration herein, to-wit, the 14th day of 
January, 1905, up to and including the time of the giving 
of his testimony. 

Eleventh. That the said witness in the expression of 
his opinion as to the injury to the premises involved 
herein was required to take into consideration the over- 
flow of the premises described in plaintiff’s declaration 
without reference to whether or not such overflow was 

2642 caused by acts under the discretion and control of the 
defendant to this suit, but was permitted to assume that 
all of the injury which they claim had occurred to said 
premises was caused by the act of the defendant herein. 


The Court: I think I will overrule that motion. 
To which ruling of the court the defendant by its 
counsel then and there duly excepted. 


Mr. Cureerriretp: We move to exclude from the tes- 
timony in this case the testimony of Charles Dooley upon 
the question of values of the premises described in the 
plaintifft’s declaration for the following reasons: 

First. That no sufficient foundation has been laid for 
the testimony of said witness and the expression of an 
opinion as to the fair cash market value. 

Second. That said witness in the giving of said testi- 
mony has shown no such acquaintance with the premises 
and value of real estate in that vicinity as to qualify him 
for the expression of an opinion thereof. 


543 


Third. That said witness in his expression of opinion 
did not state or attempt to state the fair cash market 
value of the premises involved. 

Fourth. That in the expression of such opinion said 
witness adopted an improper basis; that is to say, that 
said witness expressed an opinion as to the value of said 
land merely from the standpoint of what the said land 

2643 would produce for agricultural purposes, without ref- 
erence to its real or actual fair cash market value. 

Fifth. That the said witness did not include in the as- 
sumption of the value of said premises the coal that was 
contained therein, but did exclude the same from his 
opinion and refused to consider the value thereof. 

Siath. That the said witness did not exclude from the 
fair cash market value of said land the various excep- 
tions and reservations contained in the said deeds which 
have been introduced by the plaintiff in this case for the 
purpose of attempting to prove title, but did place a value 
on said premises without regard to said exceptions or 
reservations therein contained. 

Seventh. That said witness refused to consider the 
fair cash market value of said premises from the stand- 
point of the highest and best use that could be made 
thereof. 

Eighth. That said witness in the expression of opinion 
as to the values given by him merely took into considera- 
tion the value of said premises from the standpoint of the 
use and adaptability of said premises for the purpose of 
raising corn. 

Ninth. That in the expression of said opinion as to 
values, said witness was permitted to take into consid- 
eration everything which he knew about said premises 
until the date of the giving of his said testimony with 

9644 reference to the value there, without disclosing the basis 
therefor to the court or jury or counsel, but was per- 


044 


mitted and required to state an opinion upon the basis of 
matters which were known only to himself and not dis- 
closed upon this hearing. 

Tenth. That said witness in the expression of his 
opinion was permitted to take into consideration the con- 
dition of said premises subsequent to the date of the filing 
of the declaration herein, to-wit, the 14th day of January, 
1905, and up to and including the time of the giving of his 
testimony. 

Eleventh. That the said witness in the expression of 
his opinion as to the injury to the premises involved herein 
was required to take into consideration the overflow of 
the premises described in the plaintiff’s declaration with- 
out reference to whether or not such overflow was caused 
by acts under the discretion and control of the defendant 
to this suit, but was permitted to assume that all of the 
injury which they claim had occurred to said premises was 
caused by the act of the defendant herein. 


The Court: I think I will overrule that motion. 
To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 


2645 Mr. Cuipgerrietp: Now, we desire to move to exclude 
from the consideration of the jury all evidence with ref- 
erence to the construction of the Ogden Dam or ditch, or 
other improvements therewith connected, including the 
spillway, on the theory that the evidence in this case 
shows that the construction thereof was completed before 
the year 1893 and that any cause of action thereby accru- 
ing would be barred by the statute of limitations and that 
the evidence shows the same to be and constitute an inde- 
pendent and separate work. 


The Court: I think I will overrule the motion. 


To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 


049 


Mr. CuteerrteLtp: Now, I wish to move to exclude from 
the consideration of the jury the testimony of each of 
said witnesses and also to exclude from the consideration 
of the jury plat 13 and all the deeds that have been offered 
in evidence, for the reason that the same and each of the 
same tend to create a variance between the allegations of 
the declaration and the proof offered in this case; that 
there is not excluded from the description contained in the 
declaration in'this case the right of way of the Illinois 
Central Railroad or the C. B. & Q. Railroad, but that the 
said declaration alleges ownership of the entire premises 
without reference to said rights of way. 

2646 Mr. Burtrers: May I have that read, please? 

Mr. CuriperFiztp: Yes, as far as I am concerned. 

(Motion read.) 

Mr. Burrers: We have offered no proof as to the right 
of way of the Illinois 

The Courr: I think I will overrule that motion. That 
may be a question for consideration in some phase of the 
ease but I hardly think this motion reaches it. 

To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 

Mr. CuriperFIELD: Now, I have a motion to instruct the 
jury to find a verdict for the defendant at the conclusion 
of the plaintiff’s testimony under the first count of the 
declaration. | 

The Court: I think I will overrule the motion. 

To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 

Mr. Cutreerrietp: Also under the second count of the 
declaration. 

The Court: I think I will overrule the motion. 

To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 





046 


Mr. CureerFietp: Also under the third count of the 


declaration. 
The Court: I think I will overrule the objection. 
2647 To which ruling of the court the defendant, by its 


counsel, then and there duly excepted. 
Mr. CurperFieLtp: And then also a general instruction 
as to the entire declaration. 
The Courr: I think I will overrule the motion. 
To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 
The Court: Have you got an instruction you want 
marked now? 
Mr. CuHIPpERFIELD: Yes, I have four instructions. 


Whereupon the defendant, by its attorney, moved the 
court in writing as follows: 


Stave oF ILuINois, ea 
County or La Satie. f°" 


In THE Crrcutr Court or La Saute County. 
October Term, A. D. 1912. 


La Salle County Carbon Coal Company, 
a Corporation, 
Us. 
The Sanitary District of Chicago. 


Case. 


Now comes the defendant, the Sanitary District of Chi- 
eago, at the conclusion of the taking of the evidence on 
behalf of the plaintiff, in the above entitled cause, and 

2648 moves the court to instruct the jury to return a verdict 
: of not guilty in favor of the defendant, the Sanitary Dis- 


trict of Chicago. 
B. M. CHIPERFIELD, 


Attorney for Defendant. 


047 


And ask the court to read and give to the jury the fol- 
lowing written instruction: 


The jury are instructed that, under the law and the 
evidence in this case, it would be your duty to return a 
verdict finding the defendant not guilty, and the form of 
your verdict will be as follows: 


We, the jury, find the defendant not guilty. 


Which motion the court then and there overruled. 
To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 


And the court then and there refused to give to the jury 
said above mentioned instruction asked by the defendant 
and marked the same refused. 

To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 


Thereupon the defendant, by its attorney, moved the 
court in writing as follows: 


2649 Srate oF Inuinots, —) 


Country or La Satin. { ** 


In THE Crirourr Court or La SaLue County. 


October Term, A. D. 1912. 


La Salle County Carbon Coal Company, 
a Corporation, 
vs. 
The Sanitary District of Chicago. 


Case. 


Now comes the defendant, the Sanitary District of Chi- 
cago, at the conclusion of the taking of the evidence upon 
behalf of the plaintiff in the above entitled cause, and 
moves the court to instruct the jury to return a verdict of 


048 


not guilty in favor of the defendant, the Sanitary District 
of Chicago, under the first count of the declaration. 
B. M. CHIPERFIELD, 
Attorney for Defendant. 


And ask the court to read and give to the jury the fol. 
lowing written instruction : 

The jury are instructed that, under the law and the evi- 
dence in this case, it will be your duty under the first count 
of the declaration, to return a verdict in favor of the de- 
fendant, and that the form of your verdict will be as fol- 
lows: 


2650 We, the jury, find the defendant not guilty under the 


first count of the declaration. 

Which motion the court then and there overruled. 

To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 

And the court then and there refused to give to the jury 
said above mentioned instruction asked by the defendant 
and marked the same refused. 

To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 


Thereupon the defendant, by its attorney, moved the 
court in writing as follows: 


Strate oF ILLINot!s, 
; Ss. 
County oF La Sane. 


In tee Crrcurr Court or La SALLE County. 
October Term, A. D. 1912. 

La Salle County Carbon Coal Company, 
a Corporation, (yee 


eS 
The Sanitary District of Chicago. 


Now comes the defendant, the Sanitary District of Chi- 
cago, at the conclusion of the taking of the evidence upon — 


049 


behalf of the plaintiff, in the above entitled cause and 
2651 moves the court to instruct the jury to return a veridct 
of not guilty in favor of the defendant, the Sanitary Dis- 
trict of Chicago, under the second count of the declaration. 
B. M. CHIPERFIELD, 
Attorney for Defendant. 


And ask the court to read and give to the jury the fol- 
lowing written instruction: 


The jury are instructed that under the law and the evi- 
dence in this case, it will be your duty under the second 
eount of the declaration to return a verdict finding the 
defendant not guilty and the form of your verdict will be 
as follows: 


We, the jury, find the defendant not guilty under the 
second count of the declaration. 


Which motion the court then and there overruled. 
To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 


And the court then and there refused to give to the jury 
said above mentioned instruction asked by the defendant 
and marked the same refused. 
To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 


Thereupon the defendant, by its attorney, moved the 
court in writing as follows: 


550 


2652 Strate oF [LLINo!s, 


SS. 
County oF La SALLE. 


In tHE Crrcutr Court oF La SALLE County. 
October Term, A. D. 1912. 


La Salle County Carbon Coal Company, 
a Corporation, 
vs. 
The Sanitary District of Chicago. 


Case. 


Now comes the defendant, the Sanitary District of Chi- 
cago, at the conclusion of the taking of the evidence upon 
behalf of the plaintiff, in the above entitled cause, and 
moves the court to instruct the jury to return a verdict of 
not guilty in favor of the defendant, the Sanitary District 
of Chicago, under the third count of the declaration. 


B. M. CHIPERFIELD, 
Attorney for Defendant. 


And ask the court to read and give to the jury the fol- 
lowing written instruction: 


The jury are instructed that, under the law and evi- 
dence in this case, it will be your duty under the third 
count of the declaration to return a verdict in favor of 
the defendant, and that the form of your verdict will be 
as follows: 


We, the jury, find the defendant not guilty under the 


2653 third count of the declaration. 


Which motion the court then and there overruled. 
To which ruling of the court the defendant, by its 
counsel then and there duly excepted. 


And the court then and there refused to give to the jury 
said above mentioned instruction asked by the defendant 
and marked the same refused. 

To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 


ool 


Mr. Currrerriztp: Before we get to this motion let the 
record show also a motion to exclude the deposition of HE. 
L. Cooley, for the reason that EK. L. Cooley was called in 
person by the plaintiff and gave testimony in this cause 
upon the hearing of the case. 


The Court: I think I will overrule the motion. 


To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 


2564-2663 Argument by counsel as to the necessity for the 
reading of the deeds to the jury and as to whether or not 
title of the plaintiff is a question for the court or for the 
jury. 


Ki Liban 


OF Tih 
UNIVERSITY OF Ibs 





b 


mt 
te 








ee lal penal 


Toy) OLE 
PerrReEME COURT OF ILLINOIS, 


APRIE “TERM, A.D. 1913: 


LA SALLE COUNTY CARBON COAL COMPANY, \ Appeal from 
Appellee Circuit Court, 


vs. La Salle County. 





Honorable 


SANITARY DISTRICT OF CHICAGO, S. E. Stough 
° ° ’ 


Appellant Presiding Judge. 





ABSTRACT OF RECORD. 


Page of 
Record. 


2664 November 22, 1912, 1:30 Pp. m. 


TESTIMONY ON BEHALF OF THE DEFENDANT. 


Mr. Curperrignp: I desire, if your Honor please, to 
offer in evidence, from the record of House Document 
No. 263, now in evidence as an exhibit by the plaintiff, 
pages 444, 445, 446, 447, 448, 449, 450, 451, 452, 453, 494, 
455, being the gauge reading at La Salle, [linois, at Lock 
15, showing the stage of the Illinois River for the years 
1867, 1868, 1869, 1870, 1871, 1872, 1873, 1874, 1875, 1876, 
1877, 1883, 1893, 1894, 1897, 1898, 1900, 1901, 1902, 1903 
and 1904.~* * * I want to offer it for all of those years. 

2665 Mr. O’Conor: We object to your reading it back any 
farther than the year 1885. 

The Court: I sustain the objection. 

To which ruling of the court the defendant by its 
counsel then and there duly excepted. 





004 


Said pages 444, 445, 446, 447, 448, 449, 450, 451, 452, 
453, 454, 455 of said House Document No. 263 are in the 
words and figures following, to-wit: 





| GAUGE READINGS, ILLINOIS AND DES PLAINES RIVERS, ILLINOIS. 
(29) LASALLE GAUGE AT LOCK NO. 15, ILLINOIS AND MICHIGAN CANAL. 


| This gauge was located at the lower end of Lock No. 15 of the Hlinois and Michigan 
; Canal. It was established by the United States Engineer Department in 1867, under the 
direction of which readings were taken from January 1, 1867, to December 30, 1868. From 
April 1, 1869, to November 30, 1877, readings were ‘taken under the direction of the Illinois 
canal commissioners. For the period from December 1,1878, to June 19, 1893, it has been 
mpossible to find any records pertaining to this gauge, except for three months in 1883, 
which were taken by the United States Engineer Department during the survey of that 
From June 19, 1893, to December 31, 1904, readings were again taken under the 
Bastion of the Illinois canal commissioners. The readings taken under the direction of 
_ the Illinois canal commissioners are not continuous, but as a rule. cover only the navigation 
season of each year. 
_ As established in 1867, the zero of this gauge co nded to the low water of 1867. This 
has been determined indirectly from elevations of the water surface of the river in that 
‘icinity, as shown by the level notes of the survey of the Des Plaines and Illinois rivers, 
in 1867, in dort riction with a study of the readings which were taken on an old gauge 
, the lock during the time of that survey. These observations indicate that the low 
of 1867 was 3.88 feet above the lower miter sill of that lock. 
. to the survey of the Illinois and Des Plaines rivers made in 1902-1904, the 
the lower miter sill is 435.36 feet, Memphis datum, making the elevation of the 
hee 439.24 feet, Memphis datum. The gauge remained at this elevation until 


whieh were taken by the United States Engineer Department in 1883 
Aug the survey of that year, which extended from Joliet 
1e levels of ene ay ents at Oe 


by, ‘unt ee ed Mae |): | . ‘9 Ps , 




















Tayi ie 


LUE A ; te 
i Nh a ei vS i) i 

‘ yiiy ema 
Mein ie 
ee VE RS a 
fis ul if ui ve i‘ 


Dy ah 
‘ ut al 















bi-t WATERAIV AY: “LOOKRPOR? TO REABROTIS, ETC. 


a bench mark on the coping of the lock wall. -According to the survey of the Hlinois andy 
Des Plaines rivers made in 1902-1904, the elevation of that beneli iiark is 455.42 feer, 
Memphis data making the elevation of the zero of the gauge of ISS3 equal to 443.°5 J 
feet, Memphis datuan. ot, a 

The readings taken at Lock No. 15 from June 19, 1893, to December 31, 1904, indicate, + 
depths of water on tops of the lower miter sill, the elevation of which is 485.36 feet, Memphis ~ 
datum, aceording to the survey of 1902-1964. -These readings were obtamed by placing «| 
sounding pole on top of the lower miter sill, | 7; 

An inspection of the map will show that the readings taken at Lock No. 15 indicate the 7 
stage ol the river at the lower end ofthe poel which leads from Lock No, 15 into the river, 


Gauge readings, Minois and Tks Plames rivers, [llinois. 
ILIANQIS AND MICIHGAN CANAL, LASALLE, TL. 
: . ING7. 
[Location uf gauge, | ock 25: in charge of United States Engineer Department; time of day, not given: y 


elevation of rorn, 459.24; gauge reader, not given; copied by F. B. Duis, from Mlinois cutial commis 
=~ sioners’ report for IS77-7s.] : 


Day Jan. Feb. Mar>)| Apr { May. June. ~July. \ug. Sept. Oct. Nov. | Dee: 


Fi. in. Ft. in. Ft. in. Ft.in. Ft. in. Ft. in. Ft. in, Ft. in.. Ft. in.) Ft, in. Ft. in, Ft. in 
‘ - 4 4 \ f { : 4 


he s 10 ult Go PRES 2S PPS eee Ww | 12.5 Hot a4 0 6 0 2 D0) Toa eee 
oo.7 Soe 3 8 | eu et SPD SS. 8 i 6. O40 aes 6 9 O ese 
Fe RE oe | Clay. alee Ser O43) BBs 5 8 Pele (iy 5 2 an 

ee ie ge: eas a aaa oe ie Se) & Si 11 5 2 réa ee 
St. T O ee 1h eee “71 Se a 9 8S 1210 5 2 10 ti 3 6 Vue 

S..|° € 6 2. Ges yok i’ “eae 10° 6) 1969 6 2 9 5 4 $e 
Gon «Oo i ee | eee te ee ee 62 ‘.® i 4 ia 

ae ee as | tt he rece Sn an 1 es Ae oe S 5 3 te ae ney, 
G..| 5 10 Ey ap An 2 CE 10 Bho 5g Ss FF t) Ss 

i SS ae Rt A POPS iP Pea 8 5 0 i 4 fj 7 

ee 5 5 ne | le ee ee 14 4 9 7 ll 0 410 7 hi iB O a ee 
et, eo Va eee 7 rs (ee TM vais ¢ ame 4.3 7 4 5: yates 
ue: 8 Ae le, hw. 15 7 9 1. 10 6 4 0 7. Re 2 ort ae 
$6404 Oa ier hs A 1B 4 OM 30: 4 3S ri 5 RAS 0 Fee ee 
a Se ae eer te ee, 54 Oe  IOIO 3.7 a ve 1 Tien , 
ON TE He % eae Toe Nes is at an Lie Bs a 6 4 L: Fee 
“CRE Sam Ves 2 RES rn LAP A Ty See ae Raa caw 6 4 3 ‘ee 
Dh ab On ead Pe cy Me Bag o | 2 49 6 es 3 7 house 
ht A a Bi aS a De aa ae “Ad. 2 a ae ey 5° 3 4 ee 
st RS ae eae ws 13°11 ee g 4 2 6 6 4 4 Pes anaee 
eR een ag go A ae ee pee 13 4 oO 8 ae 24 5 4 ‘4 Haas Cpa 
2. OS 9 en ER Re | 1210 ° 11 10 Pe We ae 3 3 By ails ee he ae 
23. ee Be es 12: 6 33.3 rey ee | . 4 ME Lae mene A | 
24. “Ti ee Se See te iG: | 8241 yaa rit: 3 7s 4 10:,). Seals 
eh ea eee ee ee ee Piet PSS Be Rat to eo 3 , 5 hee 
US ae Sa: Shee We 1130 © 12)-7 7 9 TS 4 5 6 10 hice 
27 . Ot i pees ates eee Er: Rae tsi f 76 Liew: | 3 6 107) UG ee 
RD Sree eds} aeies 1010 12.7 ie: Bee We 4 3 6 Oar 
20. a eo ea ed Peet eee ht be ea eM T.4 ar. | 4 3 Ee ou ee 
ee en aOR ho coe te, 10 032". 6 6 10 3° 5 3 B yenh  o  ee 
el. Why a eee ee eee be Paka 0) eee Oey a "ARF Se age RES arity Fe 8 oe 

a 
1 


At thi tis 
t j 7 r ~ i iy 
ay) : ; = ‘ yes 
% i ba | 
DREN, Fare 
tale tuk Re 
BOUL EIS. GL. 


4 


wa Pia 
Lin Y Thee 
re , : ’ ! 


ee 
ar / 
Wan 


i ‘ i vie 


| FNS 
UNIVERSITY BE Vimar 





’ 


WATERWAY, LOCKPORT TO ST, LOUIS, ETC. 


445. 


Gauge readings, IUinois and Des Plaines rivers, Ilinois—Continued. 
‘ILLINOIS AND MICHIGAN CANAL, LASALLE, ILL.—Continued. 


1868. 
{Location of gauge, Lock 15; in charge of United States 
elevation of zero, 439.24; gauge reader, not given; cop 


sioners’ report for 1877-78. 


ri Sag eae 
ied by F. B. D 


ment; time of day, not given; 
uis from Illinois canal commis- 


' 


2 a a a a” 2 ene ene \seeres een lene 
Day Jan. Feb. | Mar. | Apr. | May. | June. | July. | Aug. Sept. Oct. | Nov. Dec. 
“ pa" = .% an. OP Sa ae eres “ oe NS eee “4 ies peg ; 








Ft. in.| Ft. in.| Ft. in.| Ft. in.| Ft. in.| Ft. in. 
| 














Ft. in.| Ft. in. | Ft, tn | Ft. tn. | Ft. im. (Ft. in. 
07; 3) 





ETF SE PDE EMER: FREE | 7 O° SB ia vegies 7 6 AE DS ay ke SRN 
Bidens tome |eeeseees RR 8 aS SCA. SSIS 6 | RM ES ee Re ee 
Biid n+ eels FREESE NPP SS) OO Oh has 5 ig De, NS “I 
ra SS ea ¥ won rs e403] eM ede go ak aman 
Fe Be * Rie the REM: S97 10 6F “OE Cee § | SAAS Ci CE GAS 
Ree” | Pas, nin See O36} 2155 T I ORE 5 | Fe AEN EY ah ORS 
AR Re SRS ee RBS et ws PA ees. | 7 | A NRE aa 2 RI 
Bi... een aiaws dacs S31) Wart WM GAgas: | 7 LER ECES SRN (aI 
FE AR Neat RE ee) Wisi oO RE, 6 PAL, . cu eiladee we aah tede li - 
ed BRB i wT RT cae HS Ried Ieee Ow Me toe | 4 Odie... debian» 
Bh Ak xs wechh a bawbns Gt 37 Oi OS BOak, 4 OO tae eee . . at Alpin 
PPR ne SPR AB rer 7 6 16 11 | B.. Bit sie ose 6. BE pak bebo slss cesnanfecesbes 
ape pene 4 SEES BNE my ee Se eS ee Oe CY Are ee le Ee, eS ReeG 
thon sie SUC ahi nG inate os a oe oe ee ee | 5 YG Mee 
Th...) <. <da ah we BSae O.75.596 BET BK gee | 5 SR RERACE RS, FAIRE SS NI 
te Reape Fahne 2 | ae anes 1011} 14 1) 7 2]..--..5. | 5 a SS pel eaery 2? babe ns 
TR > RTS 1 a a ae TR a op SOE | Gace : 3 eas aa EEN 
FE ol. ..s eee es fo ee a ee dee 2 (Ga Calis 5s nas ae lovaiias« 
BR Ree RAS HR OU 2S Oi: a Okie 6 CORES KOC yas ear 
gn MRR PES Oo ESE 7] 13:2) SO ere 6 EB ST aR So AEN 
S..|. . > -nisihiainenieelan« [O28 Se pe ae eae eee 6. Wash s siduatre poate Ree 
IG MR ee ec rE O41) At 8 1) (BaE Woe. 5 BP SIDE CATO eee 
7 FM Sat 204 te Bias. a! 4 ~ "9 PES SRNR EAS 
r . a RR ES SERPS oe el 8 0) 10 4| 5 6|........ | 3 1 TRIS EIA Ps 
25... .|... dup Gepuntanbieons + Bie SMT. Ss oe 2 ve aN SP fecha « 
26. .|.-.:.c0 saver Bove « i a ey ae) | ) 1 Cg A SRS CARON 
r+ ed ee TL boxe 7 ae Sia wy er wy 2 | i LY SRR eZ ERE 
GB 1. we ocd cakaphue Sen ee 7, OL eee eens... .. 0 Stat 65 Aaecinds cee 
@D..|...'- <tindinae aio ekanbtie nas i San Be. ee | 1 ah Ee yeaa 
BO... . 0 docket a aie alias # Pie toe Be Bese oo / 2 We Joga ds eno a> NOR 
rs Pe eS SERA 9 as a BGR tency ercere. Ao ond | 3 |p: +--+. Jnecteeee|eseenees |oneeeee 
a Probably in error; should be 8 feet 1 inch. ? , 
1869. 

[Location of gauge, Lock 15; in charge of Illinois canal commissioners; = day, not given; ele- 
vation of zero, 439.24; reader, not given; copied by F. B. Duis from I is canal commissioners’ 


report of Decemer 1, 1870, in the office of the secretary of state at Springfield, Ill., except for months 
of April and May, which were copied from said commissioners’ report for the year 1877-78} 


[The figures show the height of water in feet and inches above low-water plane of 1867.} 


























Day) Jan. | Feb. | Mar. | Apr. | May. | June. | July. | Aug. | Sept. | Oct. | Nov. | Dec. 
A a - oaety Leeman ten J -- J -- 
Ft.in.| Ft.in.| Ft.in.| Ft.in.| Ft.in.| Ft.in.| Ft.in.| Pt.in.,| Ft.in.' Ft.in. Ft.in.| Ft.tn. 
Nae Meee Ceram Cth ty ae B] wale} 37 T| Mt 7| We B48 S). 2.4) 1 4) 5 3 
¢_ A. .-a uy aleainecea i ae /-16-3| 12 7|.17 4! 2 7|~15 1 83) 24) 14] 59 
FP OA Soe PAE EE, (346-3199 2] 16°90 | 2.8), 1e LET) 2 4] 1 4) 6 
4.2). ..cicwchiwesiahtee. Oe ET 2) FPS IS Pee OR et 4 6 1 
5.4. «> dhe vafasabsreataiens Lane ST Ree? 1 Oh 80-6) S82) 17 Bt. 58] 1 4) 88 
6. .|...ckeiclooupepeeneusians | M6 2] 4 6) 14-5) 2 5) 1210) *7 1) 2:6] 13) 5 8% 
ee EER Ns Forte MOP ADL) 487 | Bee ae 8. 6 8 2 4| ae Nope FS 
8. .|...cuct-lice iin ie ei ce OMe ee seek Ae St 1 SE ee 
Fe ae eee ET eT ae ee ae ee ee ee ee 
WO. :|..... qx. ofadume sae mua 830) oe BY meer ae ee 6-8) 62 1) 1 6k ee Y 
11 ...|....asdulo deimsade nena B1 0:7 | 22 Shee Rae OPO 8B} 2.1) 1 6). 6s 
12...|... :ikakslohs ace a S68) 3) 4) 18 RE Oe Oe at a 8 8 2 0) 1:6) OORT 
13. |. . .cidesd lec nana 2. 811 9-3 a a aT ba] 2 0 | 1 ¢/ f210 
14. .|. «sch al ewe vSRinDEARnNE 1511} 10 7| 12 3) 18 9) 1040) 410) LiL) 17) 
1B . |. ccna dalaunne donde aaa 1. 2:1).12 10) 19 S42 bw 7) 490) «2110| +t 7) 28 
16. |... als eee 18 9] 149] 11 7}.18 5} 10-4] 49 1 10 | I ors 
17 . a}.acdosabdscwpicebeneuneeee ve Jr Se ee eee ae Tt 1 ot 1 Ot 396 
‘18. 1. casa ake amines 2 1| 11 4] 1011] 21 1) 921} 42) 19] 1/}.12 4 
19. |. . tas ch oe SURE Oe (B«1| 0 9 0: 8)-m 7) Oe} 3u| 1 8 g1 12 2 
20. .}. . wile ames cian ‘setts bt ow 9! 10 5] 11 1) 24) 9 7) 311] 1 8 4| 13 1 
21. .|: cian cee she gun me 8).00:0) se oP ee a) ee et 8 6 1 8] 28 7h Bs 
22. |. ahalihens somata eee 9.6710 7) 1.0) Bil) isi} 322) 12) 2 6) 13:7 
23. .|... 0s deeoub aaa. ie 16.3)..910) 18.4) 19 9) 12 1| 3 2| 4.7} 21] 25 
2A. 1. «ike spl sie SARE Fie ob ee de Ot} | 3 1) 7) Sa Ba 
25. .|. «caida aeaniainad wef 16.2) 20 0} 12 8). 17 me, Silt £8) 2 ee eee 
26. .|. chide ee oe ee Ore eee weet 2 Ol 2] Ra: sey 
27... wos ERE t 5 ee }-18 97° 810] 22 8) 15 9) 911; 27) 17/811} 12.7 
98 «Link aed PR ST Ry OS ge 8 ae Be oN 271.34). O90 333 
9. J nuoiee ahs tha seseseesl 1210] 18.9] 24 11 15 6) 9 O9| 26] 1 5|~4 7] 11 5 
20..| ccenseestee ee ee eee +) 8 LP ay 8s) 26) 1 4) BRN 1 
3].. eee ew eee dh ab wee mse eel ee eeeeee 19 1 ee (15. 3 8 9 ee 1 4 -s*ee eee 10 7 


ee 


oes 


as 


— 


; 
Ay 
¥ 
Pit 


Oe 


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"ars 


ee ee ee 


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iw. 


ey 
ee ke 
he eB tin Ped 


em} 





—<— 


447 





iven; elevation 
sioners’ report 


8 


TC. 
is 


” 


‘i. LOUIS, E 


4 


B. Duis from Llinois canal comm 


IS72. 


; in charge of Illinois canal commissioners; time of day, not 
not given; copied by F. 


a, 


.24; gauge reader, 


WATERWAY, LOCKPORT ‘ic. 
{Loeation of gauge, Lock L 


ILLINOIS AND MICHIGAN CANAL, LASALLE, ILL.—Continued. 


Gauge readings, Illinois and Des Plaines rivers, Illinois—Continued. 


of zero, 439 


for 1877-78.] 












































‘ie pe “eth <P a a ; " Se —_ 
—— 
oe (abe te tee abn elias et ne eS ae ef ES EES Cy aa eee 
. "oe. -¥ 2 0 a \ i Set fb. ER OO ae eee ee ee . , . ’ ' ’ _ ’ . ’ . . . . 
by { ee ee So ¢ “thn ie aan ; : | poe § = oe 42s Cee eT oe Nee Ss es SF «© 4 6 Oe Se ee 
Q js ‘ , ‘ . ‘ ’ ‘ ‘ ' 7 ‘ ' as a fe, ' — _ go €- 8-2 +O ’ ’ — ‘ ‘ . ' _ ’ ' , * ' . . . _ > ‘ 
_ ; 12° BD vi Ba eee ie a a. «Te . Te oe, eo e060 mee ee, et ee pel ee, er ee ’ ' ’ — , ’ ’ ‘ ' ' ’ ' _ . ’ . . 
; & ee Oe e | > ie age ee ls ee ek ae en oe; ee Fem a ee ee ee ee ee 
ee eR ae 2 <<<. f ee ee 8 On ke 8 — ee ag eee eee ‘3 SA eo 
aud ges Be Ch oh ot) 5 Ee ENO 09. ON Em Bot Rs ESE © : e : | EeCsoe Sig ees Oy eo eee 33). eee 
pst fat Rte ‘ eg ee ele ad Ee ee ee negits 
| ‘=o oe j 7 ee es So ee, ee es ee a 4.8 F 2.. t. Be =e ™ , 
s eo ee ee Sg S 2 ees ae ee eI Serene tia ae ee 
es So | 2 Es = ARaeRe te ewe ee 
| SHMANAINAROTANNAS SON SMOOROOORRRE i 2 F iptedebetetns whetete teeta sctelaceeetrse f 
~ =— ~ 
a PSS. 6 ae St eS ee | =I & Leeeteeee ner 
”~ 
| al 
ana etinehy aan ——-} m 2 
> Sgt ae an a ee Ser ae z Ee ee ee aa : 
el se NES Te ee ee Sm HOSS MONTH ODHHOnKNSeNA | ° . SOCCONNKEKKKEOCOSCSSCOSCSOSCOSSSSOSCOOSD . 
a ee een Fe = 1% ; 
a at a Soe gig nd gs STUD UD OUD UD AD UD UD HR Stet ot et sft ett tet et a ® BS SRT EEE ER ER tt a nt at * 
~ SS Soe a eee LP an | : 
. = e 
- —— — SS ee ee ane oe ee en ee ee eee . LLL ALLL LO Ae 
P SON CMOS SUM MOSS NSH HOMNHCOMONHS } nO - SAH GOSSHOMNEKEE COSCON HKHOSSSOSOOSSSOOOS 
bp | P= an ‘ores : ; 
a oe ee ee ee naa g be £o EES Se 8 wt ae 
yy ; n 
oa 
aS. Fe es a See a a = — er ne Le ee ae Ne 
ged 
ROAOADMOSOS Oooorcrocriocscr~wene eR OOSOOSO Drs be SSSR ORN AR OWNS INN eEh OAM NOnATeaee 
a < > eR | 1 = 
3 Soe SY ee at setts SA IS A i I li a i i i i li = La 2 Ro Tre < ee eee 
ar = ee | > - . 
— ad ; 
— —~— ———_—_ —— —-—— ——— } e © ——_—— = iy 
,  SHHMNGHOMTHOMHOMMNOSSOMOAGAaMaaae | & GP : goerr ot goamrsSweuen weno NeSeS : 
3 5 = Na | re g ¢ i ee ' 
=| yy 5 ' 
| = er zs 33 ron] ES*WODrrooCOCOH HUSH ony Heo eS ere : 
_ | * ; Laan . . . 
nO, ‘ . 
‘ _ = = a _ = = : —< 
= ——-———_—— ! oOo _i— -RRRREREERE uate = 
_ EAN DAI~ hy SOMANOM ASS ADOBDRADOKRNRIM MRK Ch - SAE MN THOSE MANA WOAHANAMSUMHMOOMAOON 
3s Cone ovcooMnnMnN4ns ID ID IDO + =] S ; _ 
3 > cD OoD MAME. OND DS WOO NOD ID ID UD WO 19 19 16 ae = (RASSSanneaags mMmeSeeeeemonAnnnsee 
a °o 
a es = ee : encores eke Sg ee ee ee : S - ara Se SS 6 oS fee ee : 
3 gocahnennessenwnne aie i Babette F be ; Sliiiiitiitisd 1 Peqeeosts neces 
> — peren Le 6- & fai? 2 dim, £. ew oS , ' ’ : ‘ ‘ 
a BER ER ESE PAS ee a een ere ‘| ae 2 22 eee oe Toot t Holo MAAR HS ; 
: | o> ae | . 
. } gS ‘ 
o> 5 & . 9 Our: 2 22,29 ee. “sk 2. eS -Se ShcA UR eS 7 ‘ _ ’ : L » ’ , ‘ 7 i a - as ie ’ ' i ill 
~4 a EM Cee Te 2a oe. 2 ee eS Cee. Se we ; ‘ . ; ‘ ; ‘ . ce ~ * «<<a. 8 wae @ *-° se VOD of BB Oe Se oD te DS OSes : - ‘ : ~ 3 5 ’ ’ . ’ 
—_ § = @r ev bb @ # DHSe8 7. Ce Otek fer ee kk Ce See He _ ‘ . . _ . 1 2 (ee DP ee * 
3 “3 je @ © ps 2 &. ecm We) hy me pee oe. le 1 be Cee Be eee ‘ “a ss ; SA «3 whee eh ae ‘ re. ¥ 
es gf + 8-4. @°e *W Ss 614s. pp El UL ULL Ee 6 Se Se ee : ‘ _ ‘ ' ' ’ ‘ 
= Ry Ss vr. pe 2 eS Bee 8 ee. On Se So eee . . so ad : ‘ ‘ , J . : ; ; or. + : H : 
ee a a oe ee | a ee ee, ae ee . 4 ‘ . ¥ ‘ . , . . » s alia | ' . ‘ ' , . 
ce" & ££ Wr K& § - Se '¢ ete’ 6 See A 2 Ue ee ee — _ . . ‘ ’ ’ . . s # @ e s , ’ . ‘ ’ 
_ -£ Ss & £2. b eee ek oe eo a Cee +. we + sh "i Wat” f ceo i, i oe ee 
er 2 OE 6 8 es. 6 RO ke me 6 OP ee 4 8 eee 8 ee ey eo a 4 en ae ee > v FG @ 
2 ~ 3 . . ’ - , : : 7 ; : ; , . Oe ee Caen eee eee hee | + woe . ‘ > ‘ ’ 
@ “ae ae ee oe ee Oe ee eee er ee ee Se We ae ae, M “et Oe 
fx, & ‘a a oe oe ee Se oe a ee he re ae a t oe. he Ae | a i sb Onoda bale ‘ ; ; y ; 
eke ee ee ee Ne ee ee ee ee ee a ee ee, ee pee UY ee NS ee a) 6-76 Ses 
—_ - - ne a ’ ss a ae +s Ce A. HS. SS, Ag oS 2S le *. oF ee OL ee —_ nie & @ 4 ~ . “ 
iy (ay SPE Se EF ETE BOCs ee SO OP ae ee a rae a 
geveonsnos fii iiiiiigiriiir piri evs SOD ri henge 2 8 ttt 
Gd i= < e Eeats seh e ees he ee go eS rea ee 
a wii IMM st tl lhl le eee ee ae i ee ee Wee e ; eMC ORR as s 3 >. es 8 6 - 
- R, ae ee oe oo oe ee ae Pe, es ae “al ae? : ‘ - : ek “a | ‘ ee § * ¢ 
ae oe hee ee ee a eat eee ae ee SO oe a lk fo) ‘ ‘ J , . . ’ 
— i os aoe aaa a cae ee aoe ’ ' >» lee Oa! 8) asd ‘ ’ ’ ' ’ ~ ’ ~ a . . Coe 
be» Ae AY a a et ay ma ¢ “5 es ~ ef 8-3 8 Gee iris ak -me © er wa Se mb . a oe oe Salsas BS i. «2 
~ (Meow ON OESuAMT ISSN MOOSHAMSMEShesSeH | eZ Z| ‘ + wn Gen alee MgShassr as i Oe ee 
~ —_ 9 oO _ 1 — ne S| 








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448 - WATERWAY, LOCKPORT TO ST. LOUIS. ETC, 
(rauge readings, IHinois and Des Plaines rivers, llinois--Continued. 
IMLINOTS AND M ICHIGAN CANAL, LASALLE, ILL.- Continued. 


IS7-4. 


[Location of gauge, Lock 15; in,chargeé of Illinois canal commissioners: time of day, uot given 





: 1875. 


[Location of gauge, Lock 15; in charge of Illinois canal commissioners; time of day, not given 


: elevas 


r eleva- 


‘> 


tion of zero, 439.24; copied by F. B. Duis from Iltinois canal commissioners’ report for 1877-78.] 
| | . 
Day Jan. Fe}, Mar. - Apr.” May. } June, July. Aug, § Sept. Oct Noy. Dee. ve 
. 7 
Rin.) Ft. in.) Ptein, -Fi.ine Ft.m.\ tm Ftta.. Fine Ft tne: Fin.) Feta) Pin 
ir Se SRS. ST EE Ca s ey Ue a 49 Or 2 AS Say 64. SE ET eS 
awh uk eaetlyaWwarwalyens. HRS fis yaa © BL er SQ 4.9 4.5 1.5 4° GA ® 45 
af AEE BSP Lene ce eee es ao 7 8 os 4°85 1 4 45 4 6 4 6 4 # 
eee eho y SE GaN le <i, ye «sateen a 411 410" 44 4.4 4 5 4 6 4 §- 
Oe ORES Bae Ser eee ee a 0 Te wee ae 1.5 4 0 4 35 4-6)" 4.3 
ARES ide Ss Ga baggue khan reg «wie S 4 1 ae J 4 4 105 4 5 4 6 43 
tS Pee Se rss er en ee ee Bia a4 4.6 1 6 4°35 $55 4 6 44 
|B ITE er ers Br ee eee ee 1-6 is-D 467 ae ae, Mae. 4 5 4 6 446 
RN Se wae et Py oe te ee See oe 6 0 4 8 44 $58 oS mae 4 Bs 
BRE: BE a OR ar oe Me Ee, se alae ae kee Ne | 4S 15 4efSh) Ae) 1 
ME aehcunie Hae te ERUE atime u else > + «345 Nee ae 47 4 00 4.5 3 4 6 44 
EN et epee Pehabseee #05 Uo hip oe : 7 il 4 6 Hig 45¢ 4 5 4 6 44 
+ ea EXE rie GEOR ENS 4 Foy a aa ieee 6 3 6 6 4 6)" 4 6 4 5 4 9 4 6 4% 
Thee Gay ek Ok Best Rep ae ere bo «3 6 0 ro | i 6 4.35 4°5 4 5 4 4 
| Sl gee OSs Ree Sea ee Bk eek 6 1 5 9 4.8 45 4.5 4 6 45) 44 
AA 9 5 SO a et SS ene a a2) .o9 4.7 4 5 45 4 6 4 5 4 4 
Racdigta s Sek Meals Char wha Wadley ola ss nanan 6 3 a9 4 6 4 5 Cpt 48 4 5 4 3% 
SRR eS ost u We el ab bien wets. oe os § 2% 6°} 4 t- 4.5 4.5 4 6 4°6). £38 
| BS ASE GE TSS 0 28 es ee ee Gra Site kg oy 4-5 SSP 4 ea” £8645 4 
Dead a Pema ces iieah is oxide ees 3K 5s ns - hs ates Die’ 4 6 4 5 4 6 4 °5 4 8 4 3° 
es SIRE BRE SU ERS Eee Fe OM EE ee Re a ee feat gee aS, Mae ee ee a 
Ae, is Pearle tc sutek «oso hs aa Gere es | 4 6 4 4 467 4 5 4 9 4 3. 
BO SR aon Maa ge SCC Se a 5 8 5 0 4 6 44 4 6 4 5 4 10 4 3 
OR aceon beatae «ke Perak he Saha eoh-w wenn > 5 7 » 0 4 5 4 4 OR 4H o 1 43, 
PO ECR SS DRA Bae ic ariia ec 5 9 411 4°6 4 4 4.5 4 5 49 4 37 
Pe PEE SS BETTS ys RR ee SAMO ere 3) 6 411 4 6 4 4 4°59 47 4 7. 4 3 
PRAT uh Mh eEES 1h GoaURa AN cI oe ie «vs 5 4 411 4 4 4.05 4 8 48 45 4 3 
BOG ADEN, EE ated Docs ya en 5 3 4-11 4 5 1 5 4 6 4 10 4 6 4 3h 
OS Pea SPOR CAY eerste, Se 5.95 4 ll 45 4 5 47 4 10 4 9 4 3 
I il > pres wats Lape ier ge atte tiinweced. <1 1.0.3 410 _4 5 Ds oo By 4 9 4 5 4 3 
Ob Lites bis mepets Onvaates Ha Cae eee ME hehe) eles h aca 4° 6 "OLS Panueyoows EE eS ip CR Pee 


tion of zero, 439.24; gauge reader, not given: copied by F. B. Duis from Illinois canal commissioners’ — 


report for 1877-78.] 





Day Jan. Feb. “Mar. |*Apr. | May. June. July. Aug. . Sept. | Oct. | Nov. 

‘tne \ ¢ 

ay ) ES . ’ . ‘ 

Ft.in.| Ft.in.| Ft.in.|.Ftin.' Ft.in. Ft.in. Ft.in. Ft.in.| Ft.in.| Ft.in., Ft. in. 
Oe. ae 4 8 DTT Rye alk Gey axa BPR Gal a eta ee ane ew ab tes eS Gee ge ( 
RD be Ad acss Sclidubes dattoweds ks SS) HMO 2 0-440 fA T SoSh beat Pat 
eae! Mh: AE Men'g's aks 331 5 One gain o> 64 S77 5 10 Sarit \laws SOD be FS 
NT ee TR RRS AR ELL NR ie? ee See BO eco SOM PT Re ere Lae oy 
SUM at” tp ORME 8 ESCM os RRR ee ae PB O82 BO Tea ONES dB ae Saw 
EES GO Oh RB ate Oe.) Ba PO BB eT a Ra BR Br Oe Qld 
7A IRE OY \y STERN SEE, CSET a Ce Ses Bay CAH te OT aE ae BOs €5/8 
Wee EY, Oa. coeis melwatate Ses, in BRA? BR po We Rk Ah ekg, eS 
IEE RCS RRS Fa PR ae ee DS 0 ORNS BOE Pee BS BO 8 PB Bd B58 
BS aR URE ie Sea aaae fe Ri ad Ga Sa Se tae 2O eS Cots SEO ASO 
ERODE eS Mena Caos Sead, S064) 48) 48000) 86a). 7 90 8H 
“EE CO GED: REET Re ek BAO TP S259. B49 1b 19e8 7 Boat FF ORL 
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1876. 


in charge of Illinois canal 


and Des Plaines rivers, Winois—Continued. 


ILLINOIS AND MICHIGAN CANAL, LASALLE, ILL.—Continued. 


ANOS 


Mi 


WATERWAY, LOCKPORT TO ST. LOUIS, ETC. 


, Lock 15 
-24; 


Gauge readings, 
430.2 


Location of ga 
tion of zero, 
report for 1877-78.] 


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qu WATERWAY, 


(revit readings, Mlinois and Des Plaines rivers, Ilingis Continued. 


ILiLINOTs 


* 


Lock 14: 


AND MICHIGAN 


LOCKPORT TO ST. LOUIS, ETC. 


‘ANAL. DABADILE, 128A: 


ISS. 


—Continued. 


d 


[Lecaution of gauge, in charge of United States Engineer “ ‘partment; time of day, 7. mi. 
: level Ole oTo, 443.907 gunge reader, Lowis Cook: c@pied by F. B. Duis from cards in U nited one 
C1ge raion at Citeags, Il.) 
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1893. 





(1. ocution of gauge, Lock 15; in charge of Illinois canal commissioners; time of day, noon; elevation 0 
‘ero, 435.36; gauge reader, John Corrigan; copied by O. W. Boers from records in Illinois canal com 
Missi oners’ office at Lockport, IIl.] 





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WATERWAY, LOCKPORT TO ST. LOUIS, ETO. 


Gauge readings, Illinois and Des Plaines rivers, Iinois—Continued. 


ILLINOIS AND MICHIGAN CANAL, LASALLE, ILL.—Continued. 


| Location of gauge, Lock 15; in charge of Illinois canal commissioners; time of day, 














1894. 

















f 








noon; elevation ot 





zero, 435.36; gauge reader, John i iairre copied by O. W. Boers from records 1 [llinois canal com-' 
missioners’ otlice at Lockport, Il.] ifs 
| | | rf 
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hie! a COLCIER | freee — eS 
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ps DRE ony ORE Ae as ere BS. eo a) Oo) We a 6; 10 8 iit ar biden ale x 
gad BRS aS Fae ieee sey SU aca 9.4 48 5 8 oe SY Bee cia E 
ROWS “tae ee ka aete a" aE ey ol a BT a bE a eich : 
BS oioacnttes nthwsgen ais Leo woken Ui Be af ea 32 6 a Ba ee <7 
SN, NALS ake TEs eats ee a 11° 94-10 A) ES 6 0 Be 
Sal ny 8 Se RLS a8 eo 4 1) Bie WO Le ae Ol eco a noe, ee 
RE ea Te ORS SERS fail 1 Retin M2 10 3 10.1 od) Se Fe ee ; 
Pik RI ae RARE Pee 1 1 Sy tea 11.3 {10 2140 11 1 4M BE ao ¥ 
RE PRTG, AES AE Seca OS 1 eae MS}. 10. 2 0) Pe Pe ne oo , 
ee REPRESS ees WSS pa ay Oe San es ie i ae 10 1| 11 41 0 8 Sime RR . 
ON GR Reais Feces © A RO? Be Ee i AS Se a) tile Bc Coe ee ae re Ee a pe 8 aR AF ‘ 
> a ar ek Lag cas SPDR > AP MS be ICE at 2a Tle | Ss 6 Oia eee 
} / aE a ee +t as 
1897. } 


[L pace 3 . ae one Lock 15; in charge of Illinois canal commissioners; time of day, noon; elevation o/ 


zero, 435 


missioners’ ‘office at Lockport, Ill.] 











Day, Jan. ; Feb. | Mar Apr. | May. 

| : j 

Ft in.| Ft.in:| Ft.in.| Ft.in.| Ft. in. | 
Sas PROGR, RIC a Paaees 2 OF 46.84 
ee Pie ites pt i | 21 0|] 15 6 
Ue, SPIRO SES ooo ae pees |} 211] 15 5 
She, as ee Ue Orie ah 2010|} 15 4 
ES Be aes fat 20 9! 1411! 
SR eae Fea 20 8| 14 7 
i ieh a ves ier abt Pog ae eol 20 6] 14 4 
oP Ore eee Sach ea 20 4) 14 0 
02" Rin BO ae. Spanos ee OP ss Serj bea OA Stags i= SOAR 
ES ESET Sees ees. Ri ati Sa 19:10} 18°3 
(OR SE VEEN ae eee 19 71 13 Bh 
a BES era Se re ah ae. 
he Te Ee tom Cages bap ies ee 
| Fee Se Bierce ase 1810! 12 4 
ON? 5 eae TC AE Oe See yf A Be Shy be | 
“Be OE BSS ee 18 3]| 11 9 
vet UES TASS Cerne IS: OO 4T. S| 
TS REY FREES Deere iv O4: Uh 5:3 
aS eee, 1 Te Rae aes 17 6} 11 5 
ee ees ARI 2k SOP Se iT 2 ws 
ee Ea SRS OS 16 93} 3 
EE ae Ee Tn eee 145 0! 10 10 
ro, oe een Rear ORT a PP 147] 10 9 
TOS Res aa SSE ES gee nye a 71's 
5 SR SE SLE Mass 15 0} 10 9 
NR? TE Pe Ee he 15 6| 10 8 
ES eS ECs ee | 15 6]. 10 7} 
ERS ER Aa SRI ga (eae eae 5 7| 10 6) 
“TE PS eel aes pee | 15 7| 10 4 
1S LS So eS (ee ee ht id: & 10 3 
ESR hee 2 SR Pe js =~ see 10 2 











| 
| | 

















| June. | July | Aug. | Sept. | Oct. 
(eee ee es ” =o onan 
Ft.in.| Ft.in.| Ft.in.| Ft.in. | Ft.in. 
3 Oe. O15, Bi ee 
ae hy bat) 9 9 9 6 9 5 
Ce Of Peak 98 a Bee bee 
DO AB a ere ee ee 
OTe a ST He OP 
OOF TP hl Oe eae 
Ob Ww) eee Bie OR er Ue 6 
Nas, pg Wey Chery oe Ge a” PR an) ce 
o 7:20 26) 8 khoe Ss 
7 a Fh Oe OG abe os 
9 7 10 5 | 8.61.0 81° @:5 
OS a Bek Pe ee be he cae ieee See 
| 9 6 i) SiC e es BL eS 
See eS ae oe ee ee 
| 910 0 3) 9 619 6] 96 
1 0 90 a Oa ee gg 
| 10 6| 10 2} 9 41 9 6] 9 6 
1010; 10 2} & 4 9 6 9 6 
To6 eo Ew O TO °8 
2 OL FT Se Sl RS. os 
) 1 Sp ty ay. 8 8) 8 by 8 6 
3 7) 1b 2t 8 6). 9 6] 9.6 
1 5{ 10010; 9 5| 9 4] 9 6 
1510} 0 7) 9 6 941 9 6 
15 2) 10 4 a 6) > oS LS OG 
MS 3: 6) BT Sb T? O48 
13.11 [2:10 9) O68}. 9 8] 98 6 
}.13 5] 911} 9 6] 9 5| 9 6 
1210; 9211! 9 6] 9 5| 9 6 
22) 910!) 9 6 9 5 9 6 
BRT | find a eee ak 
~ ’ 


Nov. 





auge reader, James Ross; nopiee by O. W. Boers from records in Illinois canal com 


Dec. 





| Ft. in. rin. : 





9 6 halle “ 
D6 |. eae 
9 8 | 5 dni 
Cae Re hae a 
9 30 fo ee 
9 0 \ie oe 
9 9 |e P 
9 91/2, 
9 1042.43 _” 
910 fi .ug . 
S107, 22 
“© 101. .coeee 
9 10'}...6:2 
A ee ee 
O30) 2. 
Ue iy eee age 
10) EN oes 
1G 3. ee 
101 |-o.e j 
1G" 3d toa : 
10 2) ..6. ae: b 
Ts 4 
Jes Schone eae " 
ae See ‘ 
~ee ewe mw ele ed 
emaeel 
weed eee bio 
) eel «0% oe 



















* a7 
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x vy a, s 
‘ 
‘* h | ie 
ANY = 
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ay 


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; bie buy eee Le 
II EE ROB To 7 as Bios yes 


+ ite *9 

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ie 

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~ / i 7 
, : Xn , th J a 
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“a M t ps +. ae 7, 
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4 ey yi x ae ey, GR AaS Dien 8 wR 4 Pe ol fi sy a a 
es ng) cate aaa tere Lae. i ‘ey 4 ; “h) 
} i 
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oh eget 
> Ly Js 
; F i ‘* Ae j » 3 A 
4 ny “2 + 408 : ye = 
‘ » : . 
‘ i . ¥ le ri +7 
Pr ‘ . 
s ¥ 
ts ea ‘ t <a ay seh ‘ ss vi aa 
ee cee iia San & se 
re a ¥ i A 2 oy te re 
Pry et : ra nets #¥ ea | =i = mopticton ole Hy oid 
kl ae rad : r. ah worry ¥ ee to we Oe 
ves , ; , Ce - © Nie Ay ane bbe yn he OR Lae 
eas ag! ae ee ee a) aan a ee: 
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+ «J ay = ° ‘ v as 7 a ‘ Varad ck rwd 4 -¢ 
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i ; r : ? ae ae ‘ coe nus 
a i A a = : : « 
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es at, a Aa OMe. ee ena ae | 
; me poly bs ee RS PS oan ; 
3 ef , ee (ene ks on ap we pa 
a at , y i Ey he 2 ‘ 5 
. * \ oh 5 : ‘ 4 is Se = 
; a. a 
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4 . ey ‘ 4 3 4 a sb i i ay 2 ; * 
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’ ‘9 ‘ - ee «pd 
i ‘ A ¥ we ¢ r, 
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1 5 & ‘ Pe : ty 1 wha she 
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r : ‘ “4 A . ‘ : Lt 
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on af) ae G4, at : +5 i 4 
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4 ” Pe Bi iy Me nat cs ae Wi “43 
- 5 : By: : Tay M as 
> 0 phe: é 2 iS * f é aoe if 1 
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| By a "RIVER IY BP ite r 
. VERS RITY BE MAseE. So cera ee 
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+ > + a4 R44, 7 
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eT eee Goer ate inside. AMES LB Be igce DADE Sie idl eae 
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j Eh Vdd Pea CRD ES ee 
4 ‘ . " - ¢ ¥ >> te fata vin es ge! Fog 
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q ¥ war rity f1s*3 gan Ee bate inh 
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<3 as. 





har 
. > r, i “> 
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2 f. i727 ; 2 Ge Ve ee : , 
: ; , on 
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‘ | ree ee de ie ; 
7 . ‘ sis a Fake i i‘ <s ‘ - y 
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we ico ha) erode Wien al 
. ‘ * 4> 2) A ‘ : 
’ bs ws 4 + ay eee ee PP .* ie 
‘ : ; 4 ee ee Se See STE Sa AEE A MEDI 8 eS 
A * ‘ * *. os Ws <p ae As 7 
a 3 Q { ' * toe Li fay Ce oy Were "hes +; 'a.e 1s 
ad tee ° e ne } : nna 
; 5 = y Ving 1s ; avin 
. » +a am er ae a iy 14 
- | Sr) ee a ee ) aie ‘ G. 


¢ 6° M805 9 aes es ee #j ite smelt 


p , . Sf = * < A RE 











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ae ~~ o- 
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Mar. Agr May. 
t 
Ft. in. Ft.in. Ft.in. Ft.in. 
» ee CS es Se ed 12 10 
ial cial. Sots bn I AS 12.9 
Sees ee ah tyaiey APG pelea ‘12 6 
wan edocs “eee eee | ¥ (SCREAM TEESE SCARY CSP 12 0 
ark exe’ eee twee [Aa eaten ws, oeeee 7 ll di 
ahate baie Dales wena stiwgsch osha 2 
ue ied aoe 12 2 
[eecee ese 18 9; 12 3 
<r Luts pend ee BA 38 oh | 
: eee Ot ade YT 
i ed See ew eee | were - 7 6 ie 9 
eseeee - ee ee 16 ll ’ ll eh 
- owen weee a aes alah wae! aged 16 7 ‘ ll 4 
; eee to Sol adieticl odes Syeees3> ier 8 aed ] 
Rte tee etl ee eee ee ae Ave bw 16 7 Bet 5 
be ewe eet eleoe rene wlio en wees \ 16 § Py. 4 ‘ 
die a rib oh scamfvecdeoneslesoereces Ei} li : 13 5 
Meal tt A G13 8 
4 Bailie Rares pa 4) 14 6 
Sis, 3 15 1 if ae 
Aes Th Pe 14.8| 17 8 
14 6; 18 11 
ee pe ens 14 +} 19 5 
Mm O; 19.0 
A ey 1310. 18 +4 
biietannt 1310. 17 11 
3 9 iy See's 
i 6). 17 4 
13 3. 16 1 
12 11 16 5 
CPS +116 





Feb. ‘Mar. | ai 
















LOCKPORT TO sT. LOUIS, ‘ETC. 


“189s, | 


June. 


Fi, in. 
15 “Ss 
1 4 
15 0 
14° 5. 

18 10 
13,3 
i3-1 
7 11 
12 10 
13.3 
13  6- 
13.8 
13 11 
6 11, 


ISD®9. 


> 


July. 
Ft. in. 
11 1 
lI 7 ee 
li 3} 
10 11 
10.5 
10 0 
9. 11 4 
9 8 
9 7 
9 3 
92 
a | 
8 ll 
9 0 
9 0 
eae 
9 6 
9 8 
9 10 
9 10 
9 8 
9 7 
9° 7 
9.7 
9. 7 
oa y 
ee 
WF 
Ns 
a a 
9 7 


F 


— ee 


Sept. Oct. 


Aug. 


9 


10 


woopoowo> 


~ 
~ 


Ce nmrwmnwnw eux Sv asPndsi nts ass 


— 
Ss 


9 Ww 


10 
10 


} 
\ 
} 


Ft. in Ft.in. 
9 9 o. 8:4. 
“9 8) 9 8 
a a 9 9 
9 8. 910 
9.8) 911 
10 5) 911 
10 6). 810 
10 4; 910 
10. 3 1%, 920 
10:,2'|_ eo 
OY Ya. tas 
1053 9 11. 
10 3 9 11! 
10-3) FO a 
10 2 911 
10. 2) a Se 
Pi he 1s; 3 
9 11 10 4 
910 ~10 6 
9 9 10 6 
10.3 .10 8 
10 6 10 9 
10° 8). aS 
10 4. SRW 
10.0. 22° 8 
910 211 
910 “Tie 
9-9: Wet 
0.84 ee 
re ee <}) SORE 


ra — Gauge readings, Illinois and Des Plaines rivers, YitolseCoetinved. 
WS hege IELINOIS AND MICHIGAN CANAL, LASALLE, ILL,—Continued. 


gauge, tote 14; in charge of Iinois cena! commissioners; time of day, noon; elevation o 
uge reader, James Ress; copied by Q. W, Boers from records in IUinois canal com 





eee eee 


meee 


eee ee ee ee 


, Lock 15; in me of Uinois canal commissioner ‘s; time of day, noon: elevation of 
Fe reader, ga toss; copied by O. W. Boers from records in Hlinois canal com- q 
3” t Lockport, Lil. 


ee 


ee ee 


eee eee eee 
. s 






May. June. July... Aug. Sept. | Oct. | Nov. |: Dec : 
2 ' > 
. . ; I. > | ; , ® 
Ft.in.| Ft.in.| Ft.in. Ft.in. Ft.in. Ft.in. Ft. in. Ft. in. Ft.in. Ft.in | Ft.in. 
wee Sietaede wecreses: | oneennece il 1 11 11 9 s 9 5 9 3 } 9 5 : 9. 10 | 10 
: GMs. whew e'cS 5 ving 1010 12.2 0°99; °9 5 9 3)... 41.99.10) 10-0 
Tulitas dante 1 A aa PA tie sl: OLB). 43.81 Se Fe Ore, 3 PORE 8s 16 8 
hr 10: 9:| 212-6 9 11 9 5 o 2 ind 5+ 932} 10 2 
etegetee|erec sees are ie Bato ha 182 9 5 o 2). 9°64 ot 10°23 
wee teetclessseees Sa MOS 131-12 5.90 8 9 8 9-2) 9 6+ 911] 0 2 
tn 2 | Ve Saar SA ORE Fay 9 4 92 fo CYS t Woe 
es ee AS 4 dd Be 2S Bb ES, 3 9 BT Oe? O48 1 10° Se 
2 es EE aoe SO 44 rte Ps Ba Se oN 4 ORM AE Ped 4 
1 CEES SUN tices 10-64 10.7 ©1060 9 4 6) 5 [Se GE Be Ts. 
es ae Clase &. tanks 7-13 Sie, Bol ik SE Ge 9 5 O° Sete Ot cas. 5S 
ERM 106 wet ceclarens-.- 3 11 Fi 10.3 9 11 Q 4 9 4 O: Baia St. 2: ~:; 
Biwes. =,|..:-...-|.. Res NT Ge Pree CIO BS ea Be Balm Ook I OUR eM Sh. . t 
ceo Coen Poe VA ciate eae ee ae elem ee Ge ee og ese DS eee , 
a Se eS ee 3094-49133) Bf) 20.20. 21S 9 | POU Se Sate Gta tig a eae Me 
Ss Ck a 149 1110 9:11) (44 <6 G3 9 4 ee es ee ; 
|. RSG KAR 1445. 12 4 910° Le o 0 B.S 0-8 1 a Bees 
ab. Se oS, ee ar as 12 8) 8. Soe Ss 9 0 9 5 ie er ey i 
ates Be eee BE Ble Dia ae Lo Be C8. Be Oy Bak TO Oe bea oe 
eC sare let thes 9. 6) 16:1 ee ae ge eae a at ee we Re (3 
| Se is 22k F @: 5 ele se 9 3 ie aes ih) ay Se ae 
: IEEE dig wan civ'ola'e wa eas 12 11 11'S Gb 13 a: 2 9 & pe he ORS 3S ee 
OS) ee DORR Lt a 7 tik 3 9 FE 102 9 4 9 & Or BP t0 ad tes cans 
pa Ne ae Paas 1B 3) 0 OY 10 0 o Bir oO 6 Gy 8 RY OR BRE a 
; Geen oak oes 8)! OLE RIO OB ied: 6} 8. BPM Bd. 
SS (Ot CS 12 4 10 6 8 1] g 9 a 6 o 5 9° 8 1 he 1S ee p 
es Pee Ra weg has + Sy 1 4 9 0 9 9 0 5 9 6 9... 0/1 Ra ed nea 
OF Ss ae we, Faas 111 WW 3 Q@ 4 Q 8 o 2 208 9 11 Woe Ass. 
| Witpe 8 agg | bay ‘She | Xe Saw Sl AMA See pn Beery 0 4 9 Foo UW |) “aoa... 
es AU SES An Jat ASG 2 thi @ ee a Te 9 4 9 6 wise 5 oa 
MS EONS SSS Fee Pites CS Sa 6) 9 3 Pere Bo ee 
te 0 ae ee += a _— “er * 
A NN SENN ARS REA RA RAR e 








WATERWAY, LOCKPORT TO 8ST. LOUIS, ETO. 453) 


iy 


Gauge readings, Illinois and Des Plaines rivers, {ilinois—Continued. | 
ILLINOIS AND MICHIGAN CANAL, LASALLE, ILL.—Continued. 
1900. | 
[Location ——-. Lock 15; in charge of Illinois canal commiystoners, time of day, noon; elevation 


»40f zero, uge reader, James Ross; copied by O. W. Boers from records in Illinois canal 
commissioners’ office at Lockport, Ill . 


nn ee — 


| : : | ‘a | ; : 
Day Jan. | Feb. Mar. Apr. May. | June. | July. | Aug. | Sept. | Oct. _ Nov. | Dec. 


a ae | a, OS eee 4 








cm | | a ree 

















Fi.te.| Fein. Fein. Ft.in. Ft.in.| Ft.in. Ft.in. Ft.in.| Ft.in. Ft.in.) Ft.in.| Ft. in.) 
Gl is oS aS Ebb 81. 1908) ome | WR 8) ae tT) WO 7 | 90790 |....... 
ee ee fod nthe late dares iB cis 12 9} 13-9} 10°7) 112) 11 11) 1010) 10 °7)....... 
A eae ates dd xi Meet 1823) 122°9; 109} 1010} 11130} 1010; 10 6)....... : 
Beh. . oat cat Whee! SRO" Gia He 1210} 12°9| 1011) 10 7| 11:97} 1011| 10 6)....... f 
SS Ee |nsaseeerlntonmenb|nancakes 12 9] 12 6) 1011) 10-7)| 11 4; 1011!) 10 6)....... 
re aia gile Wpisibeet | 5 dia | 19-7) 8) 10) WO OL ON |. | 7 ).......] 
ee aE GED } 900 oT 19S) IO EE 10. 8 0-8 {11 0} 0 8 }....... 
Bi cadhtae bata roa) wiaaiben 20 6) 18 1] 12-6) 10 8+ 10 9) 10 4) 11 0; 10 9|....... 
ER MARIO NY A BAK He | 3) ASc8 bh Sy 068' | 10-81 10°73) 11 0) 2 }....... 
OS Seibert acess codec abe Perr ie le ae ee le) 10.2) 1640); 11-0 |......- 
YA man eeu Rp EaGe | 18 1) 13 2] 11:9; 10 6 10 7} 10 6} 10 5| Nl O}....... 
SRE Dadkstielin Me ids. 3 are bP ase. Ie Ie Ol yee wee: Woe AER OL... 
Bly Stl d oie sc De ase ee 17 4) 13-0} 11.27 10 6| 1010| 910) 10 2) 11 O1....... 
ERS aes Seana Rigsaess 170} 1210; 106.10) 10°68) 10104 9 8) 10.27) 0 0|....... 
MU cas EOE: 0. < pits clade cy ni 16) 9.4 33. OPO 7 (1 Bal 4 oe 8 10-7... 
sad cal nce: seat intadesta 16 apes 0 61:10 8) 11.47 90 81 21 10. 6 |......- 
es hb ce divase~ nbs a caets 16 5/| 12 1; 1010] 10 6! 11 4. 1010] 10 2) 10 8 | Re 
6S ae ORS Sheena 16°64 32 0 |. 1bid} 10°86) 11. 8) 1s S490. 2PM Of... | 
oe Ry ee fewer Rp 1610; 11 9 1010) 106 1 2) 9 8! 10 2) 1 2) er Tay ’ 
ek RR Re aaa 1d i BW 18 2 1 BE Oleh MR ae ay... f 
TE nbs Ssaplest a NaOH Leonia 1G OLS |. 208 4 20. OP 1 Bt 8 Se we 4 f....... 
TE eens il ich 4) 18) Ft 7 | 10 10 fF EST 88 b A006) 38: 8h... 4 
aceon <4 Ahegeatae Seats 16°2|} 18 2) 10 7f 10 8] 12) 9 Ob 7) 38-0 ).000... 
Mane ih OE aS 1511| 12 4) 11 2| 10 6| li 2 9 6| 10 7 aS aaa 
i Ree Sg Aa eRe 16S ide 2 dk | 106 WI 40 2p Ore 2... 
8 Ea i eR fccuecet Le Ol i AT) 10 6 1 10 80 S| IO Oy Ae AL... 
Ba eto AREER | Etistie =e 15 2} 11 9) 11 7| 10 7; 11 4) 1010) 10 5) 14 | ae 
Ap staal Oe ONE SAL Soe Ol A ae bs a AO BAe OT... 
Fae ae Ea aah eee toRhee Pak? [IE 8 1 EE) eR Se 88 AT flee... | 
Wesid i hain RFs SEE 39} 11.7) 1 2) 1111] 12 3) 10 4) 10 8} 1310)....... J 
Sra rt... ebenass Es Ses eee SEU ie Ear 12.15 IO an. | 10 8.22... Bee a, i 
' | 


of zero, 435 uge reader, James Ross, copied by O. W. Boers from records in Illinois canal com~ 


[Location of gauge, Lock 15; in charge of Illinois canal commissioners; time of ag 3 noon; elevation | 
36; ga 
missioners’ office at Lockport, Ill.] 


























Day| Jan. Feb. | Mar. | Apr. | May. ‘June. July. ) Aug. | Sept. | Oct Nov Dee 
ae 4 ERAS SRS ES as Be: CS 
Ft. in. Pia: Ft. in.| Ft. in.| Ft. in. Ft. in.| Ft. in.' Ft. in.) Ft. in.| Ft. in.| Ft. in. Ft. in 
O34, 3 ae Lidetescieswcrtal (1S OO 2 Te O16 BL WOE MO BL... 
OY 2 SS Ee ee Pay cera | 18 3] 10 -8| 11 0} 10 6/ 10 5} 10 6} 10 8}....... 
OLIN 8 GIES OES IR ae |-12 11 | 10 7] 10:20) 10 5| 10 5) 10 6| 10 8}....... 
0 i pikreleaetaaastearenntat ete O20. 61 ROR 47 10 BIO 64 IGOR |... 
BEDS i RR Tee aN be ie | 12 7) 10 6) 10 8 EER ae ie ae er Oe | 
a sot Sie | 20 4). 12 6; 10 8|-10 8; 10 3; 10 5| W 2} 10  & 
hee ad ae RRNgS sae SS OO BL 18 8 20 3h 10 5) 0.3} Oe. . 
» FAR Sine RR oP mece a9) 4 161 10cR se 10 FO Be) 0 8 E10. 10 7 ne 
RR oe Soe co Wctnes | 19 3) 12 3; 10 7} 1010) 10 4; 10 4) 10 7] 10 7|....... 
TH et ae 1810} 12 1|-10 7] 10 8} 10°5| 10-4! 10 6} 10 7|....... 
UB Ge ei aa Jerannnn 6:3) 12, 2) 10 RE 40.8 | 1004) 104) 908.130 67 |... 
ft ats Reheat ae BE GT ee Se ae eee es a 
Ae ai Ses SOR Reyes | 17 8| 12.0; 10:7) 10 4| 10 4) 10 8| 10 6} 10 8|....... 
RR See | a ghee | 17 5) 11 8) 10 7) 10 3) 10 oe 40 8.20 Fe WOO i. . 
Oa, AES RSS mee ae hl At) 8 1 tO 10.8 420 ee ID S41 10 “74 90.7105... | 
| EOS LR | 16 9| 11 6| 10 6) 10 2] 10° 4{ 10 9| 10 7] 10 7),...... 
ee RR ERS 16 7/| 11 4) 10 6] 10.2) 10 4) 10 8| 10 7| 10 6}....... ’ 
NS Gah, ha yaol eaten nnats 164) 11.4] 10.6) 10,0} 10 4) 10 7/1 10 7] 10° 6)....... 
SE ee Pedtes ot fai Sh We 1008 We 6) 10 7!) 10. 730 Bn 
SORE tala ii EPR Abe te Sh 10,8) 48 aa 20 81 10-71 107} RO Ohi 
i ES a RS ey i 8a) WR O10. 6) 10 T | 10 81 aes 
ESS, EN RRS ope 0448 2.00 eee OB 10° 7 T9081 lis de 
i i-taipells Hasta wi -ict ne Ba cok | oer Lt) ye eer ee 10 ThE Bs 
Whack, eter est co enad. os alate Peete, Oe Owe, 8008 {90 FSR eo, 
%..\.<5 ee GRR tees es Pe 2 toe ae Be OO. TON e fb 10°F I OR Gocco ah ood ® 
a Rt LE ead ais s er. ee ti 2Ol eh SO IO RE IOP Se eo la 
WE ode doesiack aad iss ee ilece? Wee. S00 Tei et IO. 20 6 | 10S Lao a 
SE EEE: Faaaiiyia eee Peon 20LOe 10 oe 108 110 B10 6120 Bi. eee . 
ie YSIS S Ap Sate Li 1310! 10 8! 10 5| 11 0 46-5 AO Bhs. Scan oe | 
34 oS A acer) ae 8) 30 8) TO OO NOUR 208) 20 Oe ale apna | 
Ts BE SF Tea Mapa bacuecy., 19: Pied, «gas | 10 8) 10 5 1) Seat ee sare: Ce | 
{ | 


4 


7 





454 | WATERWAY, LOCKPORT TO ST. LOUIS, ETC. 


Gauge readings, IWingis and Des Plaines rivers, IMinois—Continued. 
ILLINOIS AND MICHIGAN CANAL, LASALLE, ILL.—Cgntinued. 
| 1902. 
[Location of uge, Lock 15; in-charge of Illinois canal Gap rere ee time of a, noon; elevatio 


of zero, 435.36; ga reader, J cow Ross; copied by 0. W / poers from records in Illinois canal com- 
missioners’ office a Lockport. I 


























Day; Jan. | Feb. Mar. | Apr. | May. | June. i, | Say. | Aug. z. | Sept. Oct. | Nov. | Dec 
—_—— ao = : -|}—— Eee 

















Ft. in. Fv. in. Ft. in. Ft. in.| Ft. in. “Fy. in.| Ft. in. Ft. in.| Ft. in. Ft. in.| Fi. in. Ft. in. 
pe RD BGR ag ee SRE 165] 12 4| 15 0} 25 0) 19 Gt $298 thse 
IE ein icths shes cabate decal 6)7).18 Few tw Oy 1810) 18 2) 18 9) Wah... g 
I i idl ek a 16 8| 12 7| 16 0} 2511| 18 roms 18 6; 1410]......; 
oe Bg Ad Ras eae Seale 9.13 71) S04 oe 8 4 12:21 | 18 1) 14 -84......) 
Oe RRS INRA Si aleipee? 1510| 13 4 2 20} 25-8) 18 2 A o) ear 1. ‘ 
SE BR Dee. UEP ah 15 6| 13 6| 2-3 2 0) 18 1 12 6 BST Bn tat 
TS Het ea REED, Bee, 16 3] 13.7|.20 0} 262/17 9) 12 3) 1811) 18 8]...... 
NE ais ie taser nls atin 15 1| 14 2 mo 7| 8 $| 47 1/ 12 2| 18 7| 18 6 a 
A EES ee 1411 | 1310} 20 4; 23 2) 16 8| 12 4) 18 4) 18 4)....... 
iL RRA Rais me Re pea 14°9| 13-7|°1910| 23 4) 1610] 12 3] 1711! 18 1\|...... ; 

CS Reve: Be ee 147) 13-6) 19 3} 28°0) 17 1} 12 2| 7 re Be fi V he ROPE : 

AY SES RRR SS Rae' 4S) 13 1) 04) BS) 6.0} 12 2) 17 2 18 OF. 

eS a . aed oe Oe) 30) S00 ae 6 40 28 117 10) 07 Bes 

oS De ait eee CREE 3 6] 13°2) @ 2} Wil) 17 8) 1110) 18 5| 17 8}...:..4 

| ee TGS RIES: &? puke 13 5| 13 3| 20 6) 2 4 7 5) 11 9| 18 4) WW 5 RENES 

A IR Ra bE A ye mea ie ot a) 4h IF 1) 74 17) 2 Be 

AR EIEN SEARS. Mab Te 13 1 meee | Or 36 9) 2261-97 6) 1 84 

ER Ris Gin ay, Fre rep 211) 13 0| 20 1| 2 8! 16 7] 11 8| 17 5) IF 4 fl 

FN dle a Giinsdiin duodenal anak 12 7 oi we 26: me SOF) EE De IF Sy 12 See 

SE SERRE aS SECS) ae ee at 19 8 i ENS 36 Of. 8 1 17. 24 YP aa 

OR i Gear: cp ae an ae a2 9) 18 10). 26°27 36 6) 11 10) 17 0 Fes ech a : 

EF RR SE ae ae 12 3}; 13 3| 18 6| 25 S46 3) TE OH: ABW cc caaks eae r 

ORR NR! RY 12-2| 1311/ 1s OF 264) 1831) 1 Bl WP ah eel , 

BS sick lod dls @ Sade ceanewot eee SA 108 17° 6) BB Re SB 88 FT a Oi. nce deee : 

SS eae BF dan oa aM og L 12 0} 16 8}.17 3) 2 7.15 0} 16 3/.16 4 Tey neteeee | 

Boschi nn fpscceoceavines 12 4 is 3] 16 9! 2-9) 16 81 16°O}.36 24... Wee 

: abo GaN 2 AL VOSS - 1210. 18 1/ 16 6) 211) 14 5/ 16 5) 16 0 - aie aoe a 

ae geil ERS. atts te Art. 17°41 :17-6| 90°61 34 31°48 61° Sia. doe 

BE sas i 0's apd» <.i.4 pace metab 0) 16 6) 10 8) 20.2) 21) ee Ot 6h... ai a 

| me PENS RA, Sik a wt is 9) 2291 19911 Wed WY 21-48 4... | 

he nse ct- -gadod- peace fii cde Bie ) ems cf WD! WB Beco ckes By eee Bein | 
1903. 

[Location of of = Lock 15; in charge of Illinois canal commissioners; time of day, noon; elevation 
of zero, 435 reader, James Ross; copied by O. W. Boers from records in lilinois canal com: 
missioners’ ‘ofthe a Lockport, Ill., for May, une, July, and August, and from. weekly gauge reports — 
filed at United States e r office, Peoria, Ill., for oh ig eo December. Readings for Novem- _ 
ber and December were taken at 7 a. m., and were copied by R. L. Hauser.] : 


a ———— rr a ap a —_ 


Day’ Jan. | Feb. Mar. 












































Apr. May | June. | July. Aug. | Set | Oct. | Nov. | Dec 

Por Peers en, eee -; _ accra Pee ee Leen ~ 

| Ft. ‘in. Ft. in.| Ft. in.| Ft. in. Ft.in.| Ft. in. Ft. in. Ft. in. Ft. in. Ft. in. Ft. in., Ft. in. 
7 alec: Malian Ba Kapri RE eg Be 8 a ead ee 13 2/13 8 
ONE MRS NE cata, Rid a ee es ee eee meme ree) 
_ eRe PRS TE hy Cad LE GR BS a ae Pe ee a a See ae 13 1/13 6° 
SR Sere eee eee eee Aw ON RRM AR UL tess wedge opbonn 1211 | 13 6 
SE RECt Ree: aceon | 17 2/- 15 10) 12 3) 12 | nico steaw aeebe 1210 13 0 
a aa ERR Reanbae 2 oa Pee ee) 16081 9858 Rad. SiR 12 8) 1211. 
Ot SET ERR Rey ER ee WAALS Te OP Od OR to eae... 12 8/13 6 
ERT A NASBE 5) me NERO BCS ROY ie | SS ae ieee ema 12 8/13 8 
RT ie Ne oes Laan Lda wh ehc nah ci 8 Te a” Re aie: Rae Sa Te a 12 8/13 8 
NY Nie REASON TREE: Jas sens Sp ae ae BE cers Sp ACE a enn 12 7) 13 7 
om Aid eae aa irae Ser edeal at 0 ee ee eck s - 42 7118 3 
RRste ch cet tick aks Miaredhiocohuctcais's «4 eee ae Re a ae, 5 Oe eee 12 8/120 
: Sa | alsa ee LP a | a ae Eee eet! 2 RO. eR aes Rk Gt Re Ee se 12 7 | 12 10 
CEE pei eae Tg GaN: AS Se TR id lo day i PN 12 7/12 4 
eS AS mapas ale RIN ‘4S 340) wea Poe 6 sl. .ae | 12 5| 12 8 
SERRE RRA aay Rae 14 -5| 14 5} 1110] 12 3 | SiGe NERS: | 12 2}13 3 
8 RRA Tg iii BRE RET RPE Pe Re Ok ee Me A OCs Cul onhanias oe ' 12 4/13 4 
SEIS RCO SPIT REA | 140 140 12 9 12 | heed ra tat 12 4/13 4 
RMS died xc na'cets ay tan bate bie cei xs Ce eae ay Lae oe Se: Ot | ee Fee 12 2/13 0 
SMEG vals Chu adipt xibea hie siEs K Rep e's 3 1 38 8 a 0 es AR 12 1/13 3 
| SEIS Ree Seas’, Rae ae a Oe 8D OU Ue Oi 92 0:1... ks ctee 12 1/13 9 
OS TACT RRP, SORE: Poe ee See ee ee ee te: ee CSE 12 2/14 2 
SESS RARORES 6 EPR, NNER BS eG oe be eee We oe | Op eae eat Sa 12 8/14 4 
ES Se MS IRS DS ae! <a See eT a eo ae eh ee eee 12 9/14 6 
ORL EEE Ra Oe dol ena PIB) 13 6) Zh} 1304. nee 12 9] 14 7. 
_ Sa ME RD + A 5.423} AS 4 ITS 1S Occ ORR 12 2) 14 6 
__ es ES ae Joverecetferee esse Saban eS ee oe ee eo eigeae eer 12 3/14 % 
28..|........ NORRESL SEER TEI ae RE 1S OY IE ROT IO Ls een 12 5) 14 2 
| Lt RIT RENE SARC SPO “BRAIN eet 39° Oe AL A, SOS orc swt. as 12 4/14 2 
_ Le es Siena Ear: REO Ve Le eae TC ete Oe SMe eet aR 12 1/14 0 
ae Mebrtye SS sate SCAT Te ee a2 28 Oca. he cee ee | 13 11 


¥ 


- “ 


TS 
uy 


grassuer nce 
eo a9 7 


Sida) 2 


4h t ._ 





WATERWAY, LOCKPORT TO ST. LOUIS, ETC. 455 


Gauge readings, Illinois and Des Plaines rivers, Illinois—Continued. 
ILLINOIS AND MICHIGAN CANAL, LASALLE, I[LL.—Continued 
1904. 


{Location of gauge, Lock 15; in charge of Illinois canal commissioners; time of day, 7 a. m., elevation 
of zero, 435.36, gauge, reader, James Ross; copied by R. L. Hauser from weekly gauge reports filed 
at United States engineer office, Peoria, I11.] 


—a — ve — oa _ —_ 
































Day Jan. Feb. Mar. | Apr. | May. | June. | July. | Aug. | Sept. Oct. Nov. | Dec. 
) | 
Ft.in.| Ft. in. Ft. in.| Ft. in.| Ft. in.| Ft. in.| Ft. in.) Ft. in.| Ftvin.| Ft. in. Ft. in.) Ft. in, 
108 16 114; 21°6; 27 1) 1912), 1410) TW oh 10) 1 8 Set Ute 2 
2 imo 81 a8 7 SRO ee. 4a Oe 1 Ws 4 SE 10) ee 13 2 in ah 8) TL. 2 
; l4 0/ 18 2) 24 6| 27 0] 1811) 14 8) 4] 19) U7) Wu) i 4 ll 2 
4 2G 17 10s) S41 | 1 Se ee ee ae) 1 Ba ed 
5 3h) 2708) 26.8) SSO) AB eee ee ae 7 Pe ed BTR ay Th 2 
bj S10} 18 2) 2 1b) Oh G17 We 1G. Beak By 6) i ao 12 6). 4d 2 
7.. 13°103} 20 5| 23 9] 2410| 17 7) 1410] 11 5| 12 4| IF 3! 12 3) 11 3) 1 2 
Bete 10.8 22 Bt Se Be eae ae ee er RE Ae Bir ae kT ke Pe 2 
Bia 8 208 3218) 2658) Be Si rat ey 3403: OR Ae Beaty Sb te. Oi) AL a. mh 2 
W0.. 1310] 22 1) 25 6) 24 O| 17 4/ 13811; It A ee AS yA EL ale gay A Ue eb B 
1l.. 1310), 21 9, 2410; 2310) 17:2) 138 7). 111] 11 3] -11 1 ae CN Me eB eb ae 
es 1G Se hy Se a Bes TA Ea 1222) 1k 3) 1 0} nn) 3; ll 1 
I3.. 14 1| 2011 | 2311:| 2210) 17 0] 13 1) 12 3) 11 2] 11.0) 11.10; lL 3] li 2 
14.. 1310} © 8] 23 5 22 5 17. Sea 2. ee a a ee ee Th? 
B..; 13 &) 1911 | B OF 22 0) 16 6). 13 7): 2) th 2 Ris ey eee Ae 
Ment le See 20) oo) Sas ek Pi ae te dee ik ae a ae ks OEE et Its |] 1 
Me). 13080 Te 1) 1.2 ee ea aS 1S ee? On IP Ey. be Ot) IT 10 7. Tk 5| 11 0 
2..| 13 61_18 8) 23) Bho Bee ae ee 2 1 10) UP 2 Tk On 11 | 14,6} 11.0 
19..| 13 6| 18 3 | Tdi) Oe eee a eae ae) a 8 te Ba Ie. al a) 8 
S.. 14°39 1-38 0 | 94 A 19 10) 1 B18: 81 1 8) De Ura 10 | 18 0 
Sct 17 Mee Wee) BS ie Ae: Bae a TD a 7 a Boe 10 | TS ae ) a | 
Rael) 2h OP ae Boe ee Ce te ee 18 10 ft ee ae) Ty ee ee 2 6 | ta 
23..| 23 24 2 8) 2) 18 7) 18 sy 8) a a) aed) sy 7) 4 Risk 
4.4) 23 a, eee ee a 16 9) 16 2) 1-8 L.A Sar Ae ey il ee a. 6): 11. 2 
oS.) 22 Oe eee ora 06 Ss) 1410 1 6 ee Beas Oe ib 8) 11s 
o..) 2. Gils eo gece) oe 8) 1410) 1 6 i TL ee ea Be Me era 8 On 4 
ot 2A 9 ae ee eee S| 14 8) 1) 24 2a abs Oi OT a be 6 1 6 
23... 208) al toe Ores 8114.6) 21 a Se a ey) hn 4st As 
29..; 20 Sb 17 8) me ie 90 7). 4 4] 1 2). 87] 22 9) 1 6) nN 38nd 
30. .) 1D. vane 27.6) 2 3; 14 4] 1 3) tl 6) 1 6) 13.6) 8} ll 2; 2 5 
sie, 1G) 315 Bice ye eh ee 2 LE By Deen Bat SET sa kon dies! | 12 6 
S 
% 
‘5 "s 


: i 
vt vA 
ni ile Biv i atk 


HTe 











000 


2678 W. I. Harris, called as a witness by the defendant, tes- 
tified as follows: 


Direct Examination by Mr. Chiperfield. 


My name is W. I. Harris. I reside at Ottawa, Illinois. 
I am in the real estate and insurance business. I have 
been connected for some years with an observation sta- 
2679 tion of the United States signal office at Ottawa. I have 
been connected with that station fifteen years or more. 
When I was first connected with that station my father 
was the observer. His name is Dr. J. L. Harris. He is 
dead. The present observer is my sister, Maude M. Har- 
ris. She is living. I have been assistant in these ob- 
servations all the time. This office is in the signal serv- 
ice of the United States, making regular daily reports. 
IT have with me the records of the office showing the 
rainfall for the City of Ottawa, La Salle County. We 
have had a continuous record, I think, since the organ- 
2680 ization of the bureau. I couldn’t give you the exact 
date. It has been operating over fifteen years, I think. 
I have the record, yes, sir, but they are not entirely 
complete. Whatever they are, I have them. They be- 
gin in the year 1904. I have also records prior to that 
time. The records begin with 1887. This is a copy of 
the record. The record comes from the office of the ob- 
server. It remains on file there now. These are copies 
of the observations that remain on file in the office of. 
2681 the United States Signal Observer. 
Mr. CurrPerFIeLp: You may commence and give all the 
precipitations. 
Mr. O’Conor: I would like to ask a few questions as 
to how the records are made. 
The Witness: The records are made daily. 
I live here in Ottawa. My office is on the southwest 


006 


2682 corner of La Salle and Main streets. The observations 
are made at the house. The precipitations were inva- 
riably made at the house. I think they started originally 
in the morning, but of late years they have been made 
in the evening about 6:30. I spend most of the time in 
the office. JI didn’t actually make all of them. I made 
a number of them. I made them just as occasion re- 
quired. Yes, my father was the regular observer, but 
frequently required me to assist him in making those 
records, and I have done so whenever occasion required 

2683 in that way. I have an instrument at home. It con- 
sists of a funnel shaped tube with a funnel graduated 
to the size of the cylinder, also an inner cylinder in 
which the actual rainfall is deposited; the outer cylinder 
being merely to collect the rain which is afterwards run 
to the inner cylinder and measured from that. If there 
was a rainfall the night before it will be shown on the 
instrument, the amount would show. I don’t think a 
heavy dew would show. I think these figures are invaria- 
bly correct. I was not there at all times when they were 

2684 made. These records do not appear in my handwrit- 
ing. I could not say what portion of them appear in my 
handwriting, because I made them, as I said before, 
whenever occasion required, and it would be almost im- 
possible for me to say what portion of them were made 
by me. The instrument is kept in a clear space on our 
premises at home, and I should say between sixty or 
seventy feet from the house, and probably not over 
thirty feet from any other building. The government 
requires it to be kept in a clear space. It is about two 
feet and a half, possibly more or less, up from the 
ground. I have an elder sister who has sometimes made 

2685 these records, but very seldom. The book does not 
show notations made by myself, and notations, if any, 
made by others. That book is not in typewriting. The 


007 


copies I have here are printed. This is not the original, 
it is a copy. I could not tell from looking at the book 
how much of it I actually made myself and how much 
of it was made by some one else, but all of it was either 
made by myself or some member of my family. 
2686 A. For February the precipitation for the month was 


3.20. 


For January, 
For February, 
For March, 
For April, 

For May, 

For June, 

For July, 

For August, 
For September, 
For October, 
For November, 
For December, 


Mr. CHIPERFIELD: 
itation per years? 


A. The total precipitation for the year is 23.60. 


(In Red 
Inches. Pencil.) 
2.81 1.82 
spl Wi AS) 
1 0.64 
62 0.39 
1.69 1.08 
1.96 WS Be 
aly 
3.06 
De 
2.80 
Dil. ( 
Brot 


Q. Have you got the total precip- 


@. You may proceed with the next one, for the next 
year. A. For 1888 the precipitation: 


For January, 
For February, 
For March, 
For April, 
For May, 

For June, 


Total for the year, 31.27. 


(). The next year, if you please, in like manner. 
1889 the precipitation was: 


1.80 
1.88 
3.70 
1.23 
D.09 
2.01 


For July, 

For August, 
For September, 
For October, 
For November, 
For December, 


The following year— 


3.08 
iki) 
0.60 
2.41 
3.38 
2.22 


AL, 


558 


For January, 1.91 For July, 0.67 
For February, 1.16 For August, 2.00 
For March, tlrere For September, 3.92 
For April, 2.44 For October, 1.51 
For May, 4.36 For November, 3.12 
For June, 4.61 For December, 1.80 


A total of 34.27. For the year 1890— 


Mr. O’Conor: Pardon me, will you give me that gen- 
eral result again, 34 what? 

A. 34.27 for 1889. 

Mr. O’Conor: All right. 


A. For 1890: 
For January, 1.94 For July, 34 
For February, 1.40 For August, 2.72 
For March, 3.00 For September, 2.48 
For April, healt For October, 3.89 
For May, 3.99 For November, 2.06 
For June 6.87 For December, pH | 
A total for the year of 31.16. 1891: 
For January, 2.86 
For February, 1.25 
For March, 0.30 


In April there is some slight trace, but was not enough 
to measure; there was some precipitation. 


For May, None 

For June, Nothing 
For July, Nothing 
For August, Nothing 


Oh, I beg your pardon, I am on the wrong column. 
May I correct that, please? 


Mr. CHIPERFIELD: Yes, certainly. 
2688 A. Commencing with March the precipitation was—I 
see I have that wrong, I will have to correct that. 
Q. You better start in again at the first of the year, 
A. Starting again: 


d09 


1891. 1892. 
For January, 2.86 For January, 1.45 
For February, 2.28 For February, 1.52 
For March, 2.56 For March, 2.70 
For April, 3.96 For April, 3.06 
For May, 1.84 For May, 13.25 
For June, 3.99 For June, 9.80 
For July, 4.45 For July, 4.92 
For August, o.11 For August, 81 
For September, 1:27 For September, 2.56 
For October, 6 For October, 63 
For November, 4.75 For November, 2.48 
For December, 1.74 For December, 1.84 
Antotal! of: 35.37. A total of 45.52. 
Mr. O’Conor: 43 what? 
Mr. CHIPERFIELD: 46. 
A. 46.12. 
Mr. CuiprrFristp: That was the flood year. 
Mr. O’Conor: Thank you. 
ieein L893: 
2689 1898. 1894. 
For January, 2.20 For January, 2.38 
For February, 3.03 For February, 1.58 
For March, 3.30 ‘For March, 2.01 
For April, o.23 For April, L5l 
For May, 1,95 For May, OL 
For June 2.49 . For June, 3.03 
For July, 1.02 For July, — 80 
For August, Shi, For August, 1.75 
For September, 2.29 For September, 7.18 
For October, 1.10 For October, 1.63 
For November, 2.18 For November, 2.09 
For December, 2.16 For December, ule) ES 
A total of 27.72. A total of 29.72. 


Mr. Butters: Twenty-five what? 
Mr. CureerFIELD: Twenty-nine. 


A. 29.70. 


2690 


2691 


For 1895. 


January, 
February, 
March, 
April, 
May, 

June, 
July, 
August, 
September, 
October, 
November, 
December, 


AstOtalieorest D0: 


1897. 


January, 
February, 
March, 
April, 
May, 

June, 
July, 
August, 
September, 
October, . 
November, 
December, 


A total of 34.12. 


L899. 


January, 
February, 
March, 
April, 
May, 
June, 
July, 
August, 
September, 
October, 
November, 
December, 


A total of 30.83. 


1.22 


82 
2.02 
1.06 
1.02 
4.79 
2.26 
1.47 
1.16 
O21 
O.0¢ 


0.98 
1.71 


- 4,47 


1.88 
Uo 
6.90 
2.99 
of 
1.59 
46 
4.37 
1.74 


63 
2.10 
BPI 
1.50 
0.08 
1.42 
0.10 
3.02 
2.19 
2.03 
1.46 
2.03 


060 


1896. 


January, 
February, 
March, 
April, 
May, 

June, 
July, 
August, 
September, 
October, 
November, 
December, 


A total of 38.50. 


1898. 


January, 
February, 
March, 
April, 
May, 
June, 
July, 
August, 
September, 
October, 
November, 
December, 


A total of 49.01. 


1900. 


January, 
February, 
March, 
April, 
May, 
June, 
July, 
August, 
September, 
October, 
November, 
December, 


A total ot sien 


1.37 
1.65 
1.32 
3.08 
4.24 
2.22 
8.63 
2.43 
9.38 


1.60 
4.53 
2.91 
1.53 
0.60 
1.96 
4.53 
7.24 
2.26 
2.24 
3.15 

ol 


2692 


1901. 


January, 
February, 
March, 
April, 
May, 

June, 
July, 
August, 
September, 
October, 
November, 
December, 


A total of 26.77. 


Mr. CHIPERFIELD: 


1903. 


January, 
February, 
March, 
April, 
May, 

June, 

July, 
August, 
September, 
October, 
November, 
December, 


1.76 
2.10 
3.01 

61 
2.15 
2.67 
O.47 

81 
3.20 

AGRE 
1.49 
2.09 


061 


1902. 


January, 
February, 
March, 
April, 
May, 
June, 
July, 
August, 
September, 
October, 
November, 
December, 


A total of 55.45. 


@. How much? 
A. 90.44 that is, 1902. 


1.13 
2.30 
3.10 
0.08 
4.19 
3.18 
1.94 
4.90 
6.03 
1.43 

46 
ro 


A total of 36.30. 


1904. 


January, 
February, 
March, 
April, 
May, 

June, | 
July, 
August, 
September, 
October, 
November, 


December, 
A total of 32.22. 


63 
1.41 
4.89 
2.00 
0.64 

10.51 
10.49 
4.40 
6.76 
1.87 
4.29 
2.01 


2.04 
1.80 
4.87 
3.93 
3.00 
So 
0.14 
3.08 
a.2¢ 

.26 

08 
1.86 


That was as far as the record goes in this book. 


Mr. CHIPERFIELD: 


@. Now you have it in other tabu- 
lar form? A. Yes, sir. 


Q. Let us ask you a question that occurs to my mind. 
Are these instruments that you are speaking of furnished 
by the Government of the United States? A. They are, 


yes, sir. 


Q. Are all these blanks that you are now reading from 
2693 furnished in a like way? 


562 


Q. Are those totals, Mr. Harris? A. I beg pardon? 

@. Are those totals? A. Yes, these are the totals of 
each day. 

@. You may give them when you are ready. A. They 
are written in pencil there. I was just looking at the fig- 
ures, for the month of January, 11.75 inches 

Q@. Now, what year is this, please? A. 1905. 

Q. Go ahead, please. A. For February, 12.26 inches. 
No, I beg pardon. It should be 1.30 for January. I had 
the amount of snowfall in that. The total of February, 
1.93 inches. March (2.09)—I don’t seem to have March 
here. 

Q. Well, proceed with April (5.15) then. A. I don’t 
find April. I have May. 





Inches. 
May, 3.68 
June, 3.09 
July, 1.68 
August, 4.12 
September, 2.13 
October, 1.87 
November, 2.01 
December, 1.70 


Mr. Burrers: May I see those, please? 

Mr. CuiperFIELD: Now, take 1906, please. Have you 
any objection to me taking the next year and putting 
them in order for you? 

A. I would be very glad to have you. 

1906. Inches. 
January, 2.07 — 


2694 No, 1.95. Four inches was the amount of snowfall. 
1.95 was the amount of actual precipitation for the 


month. 
February, 2.26 
March, 7.02 


April, 1.63 


No, I beg pardon. 


563 


There seems to be, the months of 
March and April seem to be missing. 


Mr. CuHIPERFIELD: Give what you have there. 


A. This would be: 


May, 

June, 

July, 
August, 
September, 
October, 
November, 
December, 


1907. 


January, 
February, 


2.37 
2.64 
1.45 
4.57 
0.09 
1.23 
2.63 
1.22 


Inches. 


0.20 
15 


No, there seems to have been none in February, that 


_ was the amount of snowfall. 


ruary. 
March, 
April, 
May, 
June, 
July, 
August, 
September, 
October, 
November, 
December, 


Q. What year is that? A. That is 1907. 


2696 


January, 
February, 
March, 
April, 
May, 
June, 


.86 
1.53 
3.87 
3.48 
8.17 
Ne, 


1908. 
July, 
August, 
September, 
October, 
November, 
December, 


No precipitation in Feb- 


2.99 
2.69 
4.84 
2.50 
6.92 
4.49 
4.94 
1.00 
P96 
Lia 


Now, 1908: 


3.05 
2.03 
0.35 
.69 
hye, 
foe) 


064 


(). All right, now for the year 1909, if you please. A. 


Logs 

1909. 
January, 98 July, 
February, 3.60 August, 
March, 1.64 September, 
April, 5.19 October, 
May, 2.01 November, 
June, 3.69 December, 


Q. Now, 1910, please. A. 1910: 


LO: 
January, 2.78 July, 
February, .98 August, 
March, 2 September, 
April, 3.28 October, 
May, 0.28 November, 
June, 1.25 December, 


2697 Q. Now, for 1911, please. A. 1911: 


19tte 
January, 1.80 July, 
February, 2.13 August, 
March, 1.80 September, 
April, ayal October, 
May, _ 2,64 November, 
June, ga! December, 


2.90 
3.09 
4.08 
Esa 
2.070 
3.02 


67 
3.91 
6.23 
1.25 

74 

98 


1.60 
6.28 
6.88 
2.61 
2.28 
2.10 


Q. Now, Mr. Harris, have you got for this year, so 


far? <A. I think so, yes, sir. 


Q. Just produce that and then we will be through with 


this. A. 1912: 


T9LD: 
January, it June, 
February, 1.14 July, 
March, ELT. August, 
April, 3.30 September, 
May, 7.13 October, 


Mr. CurperFrieLp: That is all, Mr. Harris. 
have some questions to ask you, Mr. Harris. 


Pale) 
2.28 
9.08 
2.82 
0.24 


They may 


565 


Cross-Examination by Mr. O’Conor. 


@. Mr. Harris, the rainfall there is taken by months, 
as I understand you? A. The rainfall is taken daily. 

Q. I understand, but the figures you have given here 
are not the daily figures. 


2697 Cross-Examination of the Witness W. I. Harris by Mr. 
| O’Conor. 


The rainfall is taken daily. The figures I have given 

2698 are the monthly figures. We might have half an inch 
of rain today and two or three days later have some more 
rain and four or five days later, or a week later, have 
some more rain. That is, it is spread all over the month. 
That shows the amount of rainfall at that given point. 


Re-direct Examination of the Witness W. I. Harris by 
Mr. Chiperfield. 


The gauge is subdivided into hundredth of an inch. 


2699 8. P. Perrerson, called as a witness by the defendant, 
testified as follows: 


Direct Examination by Mr. Chiperfield. 


My name is S. P. Peterson. I reside at La Salle, Ili- 
nois. JI am an observer in the United States Weather 
Bureau. I am a regular observer. That station is lo- 
eated in La Salle, Illinois. I make weather observations 
for the United States Government. 

I have all the records with me here. They are the 
records of my office. The precipitation data begins in 
November, 1904, from the beginning of the month. That 
record is kept by days and months. I am able to give 

2700 the daily precipitation as well as the monthly total. I 


566 


also keep in my office a record of the river gauge. That 
gauge is kept, as shown by my records, from May 20, 
1905, up to date. The United States weather observer 
makes these observations. J have been there for about a 
year and a half. During the time I have been there I 
have made these observations. The book is the original 
record and it is in my charge and custody, as being the 
person in charge of the station. 


2701 In 1904, November the total amount was 0.03 of an 


2702 


inch. December, the total amount, 1.65 inches. 


1905. 
January, 90 July, 1.49 
February, 1.09 August, 3.19 
March, 1.83 September, 3.15 
April, d.A1 October, 1.86 
May, D.0 1 November, 1.93 
June, 4.43 December, 1.28 


Q. Give the total for the year, if you please. A. The 
total for the year is 30.37 inches. 

(). Now you may proceed in like manner for the next 
year. A.: 


1906. 1907. 

January, 2.15 January, 4.46 
February, 2.01 February, .O9 
March, 2.08 March, 2.03 
April, 1.16 April, 2.30 
May, 1.85 May, 3.09 
June, 3.00 June, 3.45 
July, 2.62 AK TERS 5.94 
August, 7.29 August, 4,29 
September, 4.89 September, 4.99 
October, ELD October, 87 
November, 1.98 November, 1,55 
December, 2.14 December, 1.56 

Annual 32.20 Annual, 34.98 


Mr. Butters: Q. What was that total? A. The to- 
tal of 1907? 
().0) VG8. An 34,98: 


1908. 


January, 
Iebruary, 
March, 
April, 
May, 
June, 
July, 
August, 
September, 
October, 
November, 
December, 


Annual 


96 
2.76 
3.07 
2.89 
6.69 
2.68 
3.12 
1.82 
1-09 

Al 
1.62 

83 


nr 


28.54 


567 


1909. 


January, 
February, 
March, 
Apru, 
May, 
June, 
July, 
August, 
September, 
October, 
November, 
December, 


Total, 


1.28 
3.06 
1.40 
0.93 
3.09 
2.33 
2.92 
4.00 
3.10 
1.53 
3.02 
3.64 


30.71 


2703 Mr. CuiperrreLp: Now, you may proceed, if you please, 


and give the river gauges from the time you have them 


until the present time. 


I believe you said 1905. 


A. The elevation of the zero is 434.3. That is referred 
The observation is taken at seven 
o’clock every morning. 


to Memphis datum. 


19 


January, 
February, 
March, 
April, 
May, 
June, 
July, 
August, 
September, 
October, 
November, 
December, 


Annual, 


January, 
February, 
March, 
April, 
May, 


1.93 
ely 
a 
3.18 
6.02 
89 
4) 
3.74 
0.09 
1.03 
AY) 
Held 


26.51 


1.03 

13 
1.47 
2.98 
3.13 


1911. 


January, 
February, 
March, 
April, 
May, 
June, 
July, 


' August, 


September, 
October, 
November, 
December, 


Annual, 


oh 


June, 

July, 
August, 
September, 
October, 


1.78 
2.16 
1.31 
J.00 
eos 
D020 
3.16 
6.45 
7.42 
2.40 
2.26 
2.04 


37.64 


2.07 
2.40 
4.35 
2.54 
4.62 


2704 


23, 
24. 
25, 
26, 
oT 
28, 
29, 
30, 
31, 


May, 1905. 
IAS, 
19.4 
19.0 
18.6 
18.5 
18.4 
18.1 
18.1 
18.2 


“ “ 


“ 


OWE NOME NCSU NCO NCO No 


26, 


068 


June, 1905. 
18.1 
17.8 
17.3 
vat 
17.4 
17.9 
17.2 
16.7 
16.3 
16.5 
17.0 
18.0 
18.0 
17.6 
172 
16.8 
16.4 
16.1 
16.3 
16.4 
16.2 
16.0 
15.8 
15.6 
16.5 
15.2 
14.9 
14.7 
14.4 
14.2 


July, 1905. 
Az 14.2 
nn 13.9 
ay 13.8 
4, 137 
D, Meh) 
6, 13.5 
ie 1333 
8, 122 
9, ibsy 
10, Loar 
11, 13.1 
1 Lot 
13. 132 
14, 15.) 
15, 13.0 
16, 12.9 
abe 12.8 
bay 124 
19, 12.5 
20, 12:3 
ZAP 1a 
22, 12.0 
ray 11.8 
24, 1a 
25, 11.8 
26, Lazy 
27, Lie? 
28, tial 
ras 11:8 
30, 129 
Bit 11.9 


2707 August, 190d. 


2708 


1, 


“ “ ~ 


~ 


“ ~~ 


OMA ANIE wp 


Co ee ee 
FSS DANAE WNH OS 


22, 
23, 
24. 
25, 
26, 
27, 
28, 
29, 
30, 
a1, 


12.0 
12.0 
12.0 
eg 
11.9 
11.8 
List 
Vays 
11.6 
11.6 
11.5 
11.5 
1G 
11.8 
ied) 
Lie 
Le) 
11.3 
iY 
11.9 
11.8 
ee 
ee? 
TAA, 
leo 
9 
VAS 
11.8 
11.8 
11.8 
11.8 


069 


September, 1905. 


bam 
~~ “ ~~ ~~ 


“ 


~ “ 


Oo OND oP wD 


aod 


12; 


DD DOD DOH eH HB He eS Ee 


24. 


(SG) Teed) nop UNSy Mey PR 
SD ADND OX 


11.8 
12.2 
14.1 
14.7 
14.5 
14.4 
14.3 
13.9 
13.6 
13.4 
13.4 
13.2 
13.0 
13.0 
13.1 
13.0 
12.8 
12:2 
123 
12.6 
12.9 
12.4 
12.3 
12.2 
12.1 
12.1 
12.0 
12.0 
Leo 
11.8 


October, 1905. 


“ “ “ 


™ 


~~ “ ~~ 


CMDMHNAAIOTFWDNY 


CW WK WO LW BD KW DW PO DO PO DO DD BK KE BK BK BB eH OH ee 
FSD DAGON FP WN HS © OANANIFWNH OS Ss 


11.8 
11.8 
via berg 
11.5 
11.5 
ES 
11.4 
11.4 
11.4 
te 
Wiehe 
11.4 
11.4 
ila 
11.4 
11.5 
1AeO 
11.5 
11.6 
aS, 
12.0 
12.1 
12.0 


November, 1905. 


2709 1, 11.8 
2, 11.5 
3, 11.5 
4, 11.4 
5, 143 
6, 11.7 
‘a 12.0 
8, 12.1 
9, 12.1 

10, 12.0 
11, 11.9 
12, 11.8 
13, Tie] 
14, 11.7 
15, 11.8 
16, 11.8 
ye 11.3 
18, 11.2 
19, 11.1 
20, 11.2 
21, 11.2 
22. 11.2 
23. 11.1 
24. 11.5 
25, 11.1 
26, inp 
27, 11.1 
28. 11.5 
29, 12.1 
30, 12.1 

9710. 





“The river on that same date rose about that—the wa- 
ter between the readings on the 5th and 6th, the regular 
readings, rose to 14.4 feet at some time. The time wasn’t 


obtained. 


Mr. CHIPERFIELD : 


570 


December, 1905. 


(). That ends the year, doesn’t it? 


12.0 
12.0 
12.4 


12 Ona 


13.7 
13.6 
12.8 
12.2 
12.2 
12.2 
1S 
1221, 
{2.0 
12.1 
12.2 
12.0 
12.6 
12.9 
12.4 
12.1 
12.0 
12.3 
12.1 
Dey 
Iti hey/ 
12.4 
13.2 
13.4 
13.1 
12.7 
12.3 


A. That ends the year, yes, sir. 


2711 January, 1906. 


2712 


1, 


“ 2 


“ 


“ “ Me 


CO ONDA OE & do 


DD pd PSD PO DD OH Me He eo oe ee pe Es pe 


31, 





12.9 
13.3 
13.2 
13.9 
13.6 
13.3 
16.0 
16.0 
15.2 
15.2 
16.0 
16.4 
16.5 
16.1 
16.2 
16.3 
15.5 
15.4 
15.5 
15.8 
17.1 
16.6 
18.2 
19.0 
19.2 
19.2 
19.0 
19.0 
18.7 
18.8 
19.4 


571 


February, 1906. 


“ “ 


“ 


NO 
FPOSODDABDMUPWNH OHO DNAOKR WD HE 


29,* 
23, 


19,4 
18.6 
17.8 
18.7 
19.0 
19.4 
19.0 
18.8 
18.6 
18.4 
Ligh 
17.5 
18 
18.8 
19.0 
17.8 
17.4 
17.4 
17.5 
17.3 
18.4 
19.9 
18.6 
18.4 
20.2 
20.9 
20.3 
19.8 


March, 1906. 


“ “se “ 


“ 


“Ne “ “ 


OMON AOR wd 


Do pS PO DD DO OH He Be eS ee eS pe ep 


25, 


CORCO OS mato mat 
POS DAS 


19.4 
19eh 
19.5 
20.3 
20.4 
20.4 
20.1 
hee 
1g39 
20. 

199 
19.6 
19.0 
18.8 
18.3 
18.1 
18.1 
18.8 
19.0 
18.5 
18.2 
17.5 
19S 
16.8 
16.3 
16.4 
18.9 
20.2 
20.5 
20.1 
20. 


*Then there is a note saying ‘‘Some time between yes- 


terday and today stage of 20.1 was reached.’’ 


bo 
~ 
i 
eS) 


2714 


April, 1906. 
il 19.7 
2. 19.3 
By 19.0 
4, 18.7 
5, 18.5 
6, 18.3 
7, 18.2 
8, 18.1 
9, 18.3 
10, 19.2 
11, 19.7 
12, 19.7 
13, 19.6 
14, 19.4 
15, 19.1 
17, 18.6 
18, 18.4 
19, 18.1 
20, 17.9 
1, 17.5 
22, 172 
23, 17.0 
24, 16.8 
25, 16.6 
26, 16.4 
ay 16.1 
28, 15.8 
29, 15.6 
30, 15.5 


cal 


OE NOME NOME NORE Co OS 
aoe WN SD ADNHAAPFWN RSH RH 


PSS AND 


May, 1906. 


15.3 
15.2 
15.2 
15.1 
14.9 
14.7 
14.5, 
14.4 
14.2 
14.1 
13.9 
13.8 
13.8 
13.6 
13.9 

o4 
13.3 
13.2 
13.1 
128 
LL, 
12.6 
12.6 
1230 
i 
12.7 
12.7 
We /, 
12.0 
12.7 
12.7 


S e Wild 


“ 


 ] 


CO OND MN 


—_ — 


12, 


WMINNNNNNNMNDND HH KPH HH He 


June, 1906. 


12.6 
12.5 
12.4 


9 
Pas) 


12:3 
12.2 
12.3 
12.2 
12.2 
12.4 
12.6 
12.6 
12.9 
12.3 
12.3 
12.2 
12.1 
12.0 
Ta 
12.0 
12.0 
120 
12.0 
12 
BP btm, 
OP ka) 
11.3 
a hs 
ab Isis 
Likz 


2715 


2716 


“ 


“ 


WWNNNNNNNNNYDHEPHEPH HER HEE ee 
FODDAMNAE WDNR SMO DANAMNRWNH SO « 


July, 1906. 
11.3 
11.2 
11.0 
10.9 
10.9 
10.7 
10.7 
10.7 
10.7 
10.6 
10.6 
10.7 
10.7 
10.7 
10.7 
16.6 
10.6 
10.6 
10.6 
10.7 
10.7 
10.8 
10.9 
11.0 
10.7 
10.7 
10.8 
igeal 
11.4 
11.2 


073 


August, 1966. 


“~ 


“ 


ee dll andl all a 
ONANP wWNWEH OO 


“ 


19, 


11.2 
11.2 
Like 
11.3 
11.3 
Le 
nM ep 
a) 
11.3 
11.4 
11.5 
11.5 
11.5 
11.4 
11.4 
11.3 
11.3 
11.3 
11.4 
11.5 
11.6 
11.6 
UUs 
11.8 
12.7 
12.9 
12.4 
12.4 
12.4 
12.4 
12.4 


September, 1906. 


1, 


“ ~ “ 


“ 


“ “ 


CO COND OP ow pw 


“ 


DO DO RR ops 


29, 


wnmnnnpmny bhp 


12.3 
12.3 
12.3 
12.3 
12.3 
12.2 
LY, 
11.7 
11.6 
11.6 
11.5 
11.5 
11.5 
11.4 
11.3 
11.3 
11.2 
Li 
1 Pep 
11.2 
11.5 
11.6 
11.€ 
11.5 
11.4 
11.4 
11.4 
11.4 
11.6 
12.6 


2717 October, 1906. 


2718 


1, 


bo 
“ “ “ 


“ 


“— “ 


re 


12, 


MmrmonwmwderERRPHE RPE 


25, 


ho 
DD 


Oo DNMD OP H 


13.1 
13.2 
12.8 
12.6 
12.9 
12.4 
12.3 
12.2 
12,2 
12.1 
12.0 
11.8 
11.8 
Ls 
ie byé 
Lge 
1h Y 
ae ey 
11.8 
11.8 
11.8 
11.8 
11.8 
11.8 
12.0 
12.1 
12.1 
12.0 
11.8 
11.8 
12.0 


November, 1906. 


i} 


9 


“ 


“ 


Cc CO NI o> Or 


~~ 


TY 
IDs: 
11.8 
11.8 
11.8 
11.9 
Lh 
ay 
11.9 
11.8 
11.8 
ity 
188 
11.8 
11.8 
11.8 
11.9 
19 
11.9 
11.9 
TIES 
12.6 
14.5 
15.1 
15.5 
15.6 
15.6 
15.5 
15.3 
15.2 


December, 1906. 


fh fk fk ek eh pe 


19, 


15.1 
14.8 
14.6 
14.4 
14.1 
14.8 
16.4 
17.0 
17.4 
17.4 
17.4 
17.2 
Lk 
17e0 
16.9 
16.8 
16.6 
16.6 
16.4 
16.3 
16.2 
15.9 
15.8 
16.2 
16.2) 
16.5 
16.7 
16.8 
16.9 
16.8 
Li 


2719 


579 


January, 1907. February, 1907. March, 1907. 
ip 16.5 1 22.7 if ines. 
2, 16.8 2, . 22.4 Pi 16.8 
3, Lye D, 22.0 3, Teel 
4, 17.3 4, 20.5 4, 16.9 
D; 17.5 D, Lose D, 16.8 
- 6, 17.6 Gi" 19.8 6, 16.7 
ts iTS PLN Toe fi 16.4 
8, {heel oa iss 19.4 8, 16.3 
th ILE yes aati b Sp 19.4 uf 16.1 
10, asta 2: Tee Ls 15.9 
11, i ee, bias) 9 AD 15.8 
12, 194 22, To eee on 15.8 
13, lee Zoe TS. on eels 16.1 
14, 18.8 = 24, 13:5 ~ 14, 17.0 
15, WG. ieee 20; liepy _eila 18.0 
16, 18.6 26, 18.0 16, 18.4 
ine One 215 ified, onal Big 18.6 
ile 184 28; LW GAY ea lies 18.5 
ike 19.4 1: 18.3 
20, 20.2 20, 18.1 
21, 23.6 21, 15.0 
22, 27.6 22, ino 
23, 26.8 23, Wied 
24, 26.5 24, Weep 
20; 26.3 20, 17.3 
26, 26.0 26, 17.3 
at, 25.2 21, 17.2 
28, 24.2 28, Evel 
oo, 24,2 29, 17.9 
30, Zouk 30, 1S 
31, 23.2 ail. 20.4 








*Then from the 7th to the 16th, inclusive, the river was 
frozen over so that no readings were made. 


2720 


2721 


April, 1907. 
13 20.4 
7. 20.2 
3; 20.0° 
4, 19.6 
D, 19.2 
6, 18.9 
(f 18.6 
8, 18.6 
9, 18.6 
10, 18.5 
11, 18.4 
12, 18.0 
13; Li 

14, 17.8 
15, 17.6 
LG Lie 
ibe: 17.3 
ep iPAl, 
19; LG 
20, 16.7 
PAL. 16.5 
29 16.3 
23, ose 
2A, for 
25, 15.8 
26, 15.7 
28, 15.3 
29, 15.3 
30, 15.4 


576 
May, 1907. 


“ 


“ 


“~ 


BNA PWwWN 


pad 


NO Oe ee 


22, 


bo bo 


25, 
26, 
oT, 
28, 
29, 
30, 
31, 


16.2 
17.6 
18.1 
18.2 
18.1 
17.8 
17.6 
17.4 
17.3 
est 
16.9 
16.7 
16.6 
16.4 
16.4 
16.4 
16.4 
16.3 
16.2 
16.0 
15.8 
15.6 
15.6 
16.2 
19722 
18.0 
18.3 
18.6 
18.5 
18.3 
18.1 


June, 1907. 
ib 18.8 
2, 17.6 
3, 17.4 
4, 17.5 
D, Lies 
6, 18.0 
7, Ley 
8, Las 
a VES 
10, 17.8 
Lil’ 179 
12, 17.8 
13, 17.7 
14, 17.6 
15, 17.4 
16, 17.2 
17, 16.9 
18, 16.7 
19. 16.6 
20, 16.4 
21, 16.2 
Vp 16.1 
23, 16.1 
24, 16.2 
25, 16.4 
26, 16.5 
27, 16.4 
28, 16.2 
oo 15.9 
30, 15.7 


2722 


2723 


bd ek 


12, 


diye OUT. 


15.5 
15.4 
15.2 
15.1 
14.8 
14.8 
14.8 
15.0 
16.6 
17.2 
18.4 
1:9 
20.4. 
19:7 
19.3 
19,2 
19.0 
19.0 
18.7 
18.6 
18.3 
18.1 
18.1 
18.0 
17.8 
Ay 
17.4 
Lil 
16.9 
16.7 
16.4 


August, 1907. 


“ 


~~ 


29, 


oo ww 


16.1 
16.0 
15.8 
15.6 
15.6 
15.5 
15-5 
15.6 
15.7 
15.7 
15.8 
15.5 
15.7 
15.8 
15.6 
15.6 
16.4 
16.4 
16.0 
162 
ied 
LOS 
16.9 
10:7 
16.4 
16.1 
15.9 
15.6 
15.3 
15.3 
15.8 


September, 1907. 


1, 


CO No oe ne ee ee oe 


22, 


wrod © ww PY Pw 


16.0 
16.0 
16.8 
15.6 
15.2 
15.0 
14.8 
15.0 
15.3 
15.9 
15.6 
15.9 
13.2 
14.9 
14.7 
14.6 
14.4 
14.5 
14.6 
THe. 
16.3 
16.4 
16.2 
16.0 
15.9 
15.7 
Hayy 
17.2 
19.0 
19.4 


2724 October, 1907. 


2725 


1, 


“ “ “ 


“ 


“ee Ne 


CO OND oF wD 


ee ed a ee 


20, 


ho bw 


23, 
OA. 
25, 
26, 
o7, 
28, 
29, 
30, 
31, 


Lhe 
18.9 
18.6 
18.8 
18.7 
18.2 
to 
17.6 
17.4 
14.0 
16.9 
16.6 
16.3 
16.0 
15.8 
15.7 
15.5 
15.4 
15.3 
15.0 
14.8 
14.7 
14.5 
14.4 
14.3 
14.1 
14.0 
13.9 
13.1 
13.8 
13.7 


November, 1907. 


“ “ “ 


“e 


“ 


~— 


CON A OF WD re 


“ 


29, 


28, 


13.6 
13.7 
13.8 
13.9 
14.0 
14,2 
14.2 
14.1 
14.1 
13.9 
13.8 
13.7 
13.7 
13.6 
13.5 
13.5 
13.4 
13.3 
13.3 
13.3 


13.8 


14.5 
14.6 
14.6 
14.6 
14.5 
14.6 
14.5 
14.5 
14.5 


December, 1907. 


1, 


“ 


“ 


CO ONAN 


DD wo HW PPO WH YWNWND BH BB BH HHH He HY 
SD ae = Se ad dm & b coe LS So Ree) os SP aN a LY te lee LS i) 


30, 


31, 


14.4 
14.2 
14.0 


13.9 


13.8 
13.6 
13.5 
13.7 
13.7 
13.9 
15.0 
15.7 
15.8 
15.8 
15.7 
15.6 
15.7 
15.6 
15.4 
15.3 
15.1 
15.1 
15.2 
15.5 
16.6 
17.5 
ice 
19.0 
20.6 
21.3 
21.5 


2726 January, 1908. 


2727 


iH 21.4 

2, 21.1 

3, 20.8 

4, 20.4 

5, 20.1 

6, 19.8 

7, 19.6 

8, 19.5 

9, 19.1 
10, 18.6 
11, 18.5 
12, 18.3 
13, 18.3 
14, 17.8 
15, 17.7 
16, 19.2 
17, 19.7 
18, 19.3 
19, 19.1 
20, 19.2 
21, 19.2 
22, 19.4 
93, 18.5 
24, 18.2 
25, 17.9 
26, 18.0 
27, 18.5 
28, 17.9 
29, 17.5 
30, 17.0 
31, 16.7 


079 


February, 1908. 


18, 


_ 17.0 


16.8 
15.6 
20.0 
22.1 
23.7 
20.2 
24.7 
23.7 
23.4 
22.6 
21.9 
21.4 
21.1 
21.3 
21.4 
22.9 
23.1 
22.8 
22.9 


March, 1908. 
L, 22.3 
2, 23.0 
3, 23.9 
4, 23.7 
D, 23.9 
6, 26.0 
1, 28.4 
8, 28.8 
9, 28.4 
10, 28.0 
HH, 27.9 
12, 27.0 
13, 26.6 
14, 26.1 
15, 20.0 
16, 25.2 
17, 24.8 
18, 24.3 
Loy 24.2 
20, 24.4 
21, 24.4 
22, 24.2 
23, 23.0 
24, 23.4 
20, - 22.7 
26, 22.1 
at, 21.9 
28, 21.6 
29, PART | 
30, 21.5 
dl, 2160 


*Then the river was frozen from the 4th to the 12th, in 
elusive, and no readings were made. 


2728 April, 1908. 


le SY & 


“ 


“ “ 


(OND OP oo 


ONMWONMONYP NWN NMWDND HD FF KF BF BF He eH 


) 


we) 
— 


21.0 
20.9 
20.6 
20.3 
20.2 
Loi 
19.6 
19.6 
19.8 
19.9 
1s, 
19.8 
19.5 
19.1 
(Pets, 
18.5 
18.5 
18.7 
18.6 
18.4 
18.2 
18.0 
17.8 
17.8 
18.3 
19.1 
19.4 
20.5 
20.7 
20.6 


580 


May, 1908. 
1 20.3 
2, 20.1 
3. 19.7 
4, 19.4 
5, 19.3 
6, 20.2 
i 20.8 
8, 214 
9, 22.6 
10, 23.2 
ih 23.2 
12, 23.3 
13, 23.4 
14, 24.6 
15, 26.1 
16, 26.6 
17: 26.5 
18, 26.2 
19, 26.0 
20, 26.0 
1, 25.8 
29, 25.6 
93, 25.0 
24. 24.4 
25, 23.9 
26, 23.4 
oF, 22.7 
28, 29,2 
29, 29.9 
30, 22.7 


OO 
tae 


22.5 


2729 


2730 


o81 


The court adjourned court until Monday, November — 
25, 1912, at 10:30. 


Mr. CHIPERFIELD: 


I understand that this copy may go 


into the record as a continuation of the examination of 
Mr. Peterson. 


The Court: 
Mr. CHIPERFIELD: 


The Court: 


That was the agreement. 
Was that the understanding? 


That was the understanding and if any- 


2731 thing is wrong before the case goes to the jury you may 
eall attention to it and it shall be modified accordingly. 


2731 


River staceés av La Sauue, ILuiNols, at 7 0’CLOCK A. M. AS 
SHOWN BY THE RECORDS IN THE UNITED Nrates WEATHER 
BureEAvu OFFICE. 


OANA KwWNHrH 


1908. 


Jan. Feb. Mch. Apr. May June 


22.1 
oil 
21.3 
20.8 
20.4 
20.0 
19.6 
19.3 
19:0 
18.6 
18.2 
17.9 
i ay 
18.1 
18.2 
18.0 
Eire 
17.5 
17.4 
ae 
16.9 
16.6 


12.8 
12.8 
12.7 
12.7 
12.6 


13.0 
12.8 
12.7 
12.5 


12.4 
12.1 
12.0 
12.0 
oa 
By) 
Pho 
11.8 


Sep. Oct. 


11.8 
Dat 
Lise 
Li 
pos 
117 
Li 


11.5 
11.4 
11.4 
11.4 
11.4 
11.4 
11.5 
11.6 
E.G 
a Bs) 
EGO. 
ss) 
11.4 
11.4 
11.4 
11.4 
11.5 
11.6 
11.4 
11.5 
11.5 
11.5 
11.5 
11.5 
11.6 
11.6 
11.6 
11.6 


11.6 
11.6 


Nov. 


11.6 
11.5 
11.5 
11.5 
11.6 
11.6 
11.6 
11.6 
11.5 
11.5 
11.5 
11.5 
11.5 
11.5 
11.6 
11.6 
11.6 
11.6 
11.6 
11.8 
a 
11.8 
11.9 
LUD 
12.0 
12.3 
12.4 
12.1 
12.2 
12.3 


2733 


082 


RIVER STAGES AT LA SALLE, ILLINOIS, AT SEVEN O’CLOCK A. 
M., AS SHOWN BY THE RECORDS IN THE UNITED STATES 
WEATHER BUREAU OFFICE. 


1909. 


ODVATMTRWWH 


Oonnorwnre 


Jan. 


13.6 
14.0 
14.8 
15.2 
14.4 
12.9 
12.4 
12.2 
13.0 
13.3 


* 


koE * KK KR KK 


Jan. 


kK KOR OK KK HK KK OK KK X 


Feb. 


* KK KKK KK K KH KK OK 


Meh. 


20.1 
20.5 
20.8 
21.2 
22.0 
24.9 
22.2 
22.0 
22.3 
22.0 
21.8 
21.6 
21.5 
21.4 


Apr. 


16.7 
16.6 
16.5 
16.3 
16.1 
16.1 
16.5 
iy ge 
17.2 
17.3 
17.3 
17.2 
1 fs 
18.7 
19.5 
19.6 


19.5 
20.2 
21.4 
21.4 
21.9 
22.4 
22.2 
22.0 


21. 2 
20.7 
20.2 
21.1 


Apr. 


17.4 
AT AL 
16.9 
16.7 
16.7 
16.7 
16.5 
16.4 
16.2 
16.0 
15.8 
15.6 
15.5 
15.3 


May 


22.3 
22.7 
22.6 
22.3 
21.9 
21.4 
21.1 
20.8 
20.2 
20.4 
20.1 
19.9 
19.8 
19.6 
19.4 
19.3 
18.9 
18.6 
18.2 
17.9 
1250 
17.4 
brew t 
16.8 
16.5 
16.5 
16.8 
16.8 
16.7 
16.7 
16.6 


June 


16.5 
16.3 
16.2 
17.0 
17.5 
17.6 
17.3 
legit 
18.1 
18.9 
18.8 
18.7 
18.7 
18.4 
18.1 
17.8 
17.6 
17.3 
o77 
16.9 
16.7 
16.5 
16.5 


16.5 | 


16.5 
17.0 
A be ys 
Wag 
17.6 
ae (er 


1910. 


May 


ay 
18.0 
20.4 
21.0 
20.7 
20.2 
19.5 
19.3 
19.4 
18.9 
18.6 
18.4 
18.2 
17.9 


*River frozen; no reading made, 


July Aug. 


16.9 
16.5 
16.3 
LS.g 
AB 
15.7 
15.9 
16.1 
15.9 
15.8 
15.8 
15.7 
15.5 
15.3 
15.3 
15.4 
15.4 
15.3 
15.0 
14.8 
14.7 
14.6 
14.5 
14.4 
14.3 
14.1 
14.0 
13.9 
13.8 
13.8 
13.7 


13.6 
13.5 
13.5 
13.5 
13.5 
13.4 
13.3 
13.3 
13.2 
13.2 
13.1 
13.1 
13.1 
14.3 
15.4 
1Get 
16.2 
16.0 
15.7 
15.5 
1.1 
14.8 
14.6 
14.4 
14.3 
14.2 
14.1 
14.0 
14.0 
13.9 
13.8 


July Aug. 


13.8 
13.7 
13.5 
13.3 
13.1 
13.1 
11.9 
12.9 
12.8 
12.8 
12.7 
12.7 
12.6 
12.6 


12.3 
12.2 
12.2 
12.2 
12.1 
12.0 
12.9 
a9 
12.0 
r.9 
a1.9 
11.9 
19 
11.8 


Sep. 


Love 


13. ‘4 
13.4 
13.3 


Sep. 


12.2 
12.2 
12.2 
12.3 
12.3 
13.0 
13.0 
13.1 
13.5 


13.0 
12.8 
13.0 
12.8 


Oct. 


13.1 
13.1 
13.0 
12.9 
12.9 
12.9 
12.9 
12.8 
12.8 
13.0 
13.0 
13.0 
12.9 
12.7 
12.7 
12.6 
12.6 
12.6 
12.5 
12.6 


12. 8 
12.9 
13.0 
13.3 
15.5 
13.8 
13.8 
13.7 
13.7 
13.6 


Nov. 


13.5 
13.6 
13.6 
13.6 
13.6 
13.6 
13.5 
13.7 
13.8 
14.4 
14.4 
14.6 
14.5 
14.5 
14.6 
14.6 
15.0 
15.8 
16.1 
16.2 
16.3 
16.1 
17.0 
IS 
18.9 
18.8 
BB Pry 
18.4 
18 
17.9 


Nov. 


12.4 
12.4 
12.5 
12.5 
12.5 
12.4 
12.3 
12.3 
12.4 
12.5 
12.5 
12.5 
12.5 
12.4 


kk OK RK KK KK RK KE KK K HS 


2734 


2735 


083 


RIVER STAGES AT LA SALLE, ILLINOIS, AT SEVEN O’CLOCK A. 
M., AS SHOWN BY THE RECORDS IN THE UNITED STATES 
WEATHER BUREAU OFFICE. 


1910. 


Jan. Feb. 


a 
a 
ris) 
fod 
© 
ee We nae Se we we rk a Ser ee 


Jan. Feb. 


OMONDAhWDWEH 


* * * * *F K KF K K KOK K 
jak 
Or 
Or 


Lf * 19.4 
18 Pere LO 
aH, ie Hs 
20 eg EPs 
21 19.3 
22 ao 18.9 
23 oo 8.5 
24 oe lS. 
25  toel 
26 a EY 
27 alt, t 
28 ee (0 
29 18.6 


Meh. 


14.5 


Apr. May 


15.8 
15.7 


i Wy EY § 
17.5 
17.4 
17.4 
uhrge 
16.9 
16.7 
17.0 
17.0 
17.4 
17.8 
18.2 
18.4 
18.2 
18.2 
18.2 
18.4 


June 


15.8 
15.5 
15.4 
15.3 
15.1 
14.9 
14.7 
14.3 
14.3 
14.2 
14.0 
13.8 
13.7 
13.8 
13.7 
13.8 


OL 


13.2 


*River frozen; no reading made. 


July Aug. 


12.6 
12.6 
12.6 
12.9 
13.1 
13.2 
13.2 
12.8 
12.8 
129 
12.8 
12.6 
12.4 
12.4 
12.4 
12.4 
12.3 


11.8 
12.4 
12.4 


12.1 
1231 
12.1 
12.1 
12.1 
12.1 
12.5 
12.4 
12.3 
12.3 
12.2 
12.3 
12.3 


July Aug. 


13.0 
12.9 
12.9 
12.9 
12.8 
12.7 
12.8 
12.9 
12.9 
19 
13.0 
12.8 
NPY ¢ 
12.8 
12.7 
127 


12.7 
12.7 
12.5 
12.4 
12.4 
12.4 
12.4 
12.6 
12.4 


Oct. 


17.3 
17.6 
18.3 
18.9 
19.2 
19.0 


18.5 
18.3 
18.2 
18.0 
17.8 
17.6 


“17.5 


17.3 
17.2 
17.4 
iNeed 
tA tee 
17.5 


17.3 
17.5 
18.0 
18.0 
gra 
L733 


17.4 


Nov. 


17.0 
16.9 
16.8 
16.6 
16.5 
16.4 
16.6 
16.6 
16.5 
16.5 
16.5 
17.4 
18.6 
19.0 
18.8 
18.8 
18.6 
19.3 
20.5 
20.5 
20.5 
20.2 
20.0 
19.6 
19.6 
19.4 
Lot 
19.0 
19.0 


2736 


2737 


2738 


084 


RIVER STAGES AT LA SALLE, ILLINOIS, AT SEVEN O’CLOCK A. 
M., AS SHOWN BY THE RECORDS IN THE UNITED STATES 
WEATHER BUREAU OFFICE. 


30 
31 


© CO FD Ot He GD DO ft 


Jan. 


18.4 
17.9 


Jan. 


RR A SR OR UR. PES To ae ele Rk TK) OR Sk ok OH Oe ce Re SRY UE eR) SR Pe ag 


Feb. 


Feb. 


* F K K K KR KK KK KK KK KK KK KK KK KOK KK OK K KR 


Meh. 


14.5 
14.4 


5 
=) 


* FR KK KF KK K KK K KK K H F 


24.3 


Apr. 


15.7 


May 


14.3 
14.3 


17.7 


a911: 


June 
13.0 


1912. 


June 


17.6 
17.5 
17.2 
Leal 
16.9 
16.8 
16.5 
16.2 
16.0 
15.8 
15.7 
15.5 
15.2 
15.2 
15.6 
15.9 
15.9 
15.8 
15.8 
15.8 
15.7 
15.5 
15.3 
15.1 
14.9 
14.7 
14.5 
14.3 
14.2 
14.2 


*River frozen; no reading made. 


July Aug. 


12.4 12.4 
12.4 12.4 


July Aug. 
14.5 14.8 
14.4 14.9 
14.2 14.5 
14.1 14.5 
14.0 14.4 
13.9'- 14.3 
13.3: 14,2 
13.7 14.2 
14.0 14.2 
14.0 14.3 
14.0 14.3 
14.0 14.2 
14.1 14.3 
14.1 14.3 
14.0 14.2 
13.8 14.2 
14.0 14.5 
14.3 14.4 
14.2 14.5 
14.1 15.6 
14.3 15.4 
14.3 15.8 
14.4 16.3 
1430 0500.0 
14.5 16.1 
14.5 15.7 
14.5 15.3 
14.5 15.1 
nC: Sy gies ee!) 
14.6 14.7 
14.6 14.6 


Sep. 


17.2 


Sep. 


14.5 
14.4 
14.3 
14.3 
14.3 


14.2 
14.1 
14.0 
13.9 


13.7 
13.7 
13.5 


13.7 
13.6 
13.5 


13.4 
13.6 
13.6 
13.5 


13.5 
13.5 
13.4 


13.3 
13.3 


Oct. 


0 
17.0 


Oct. 


13.3 
13.4 
13.5 
13.5 
13.4 


13.3 
13.3 
13.4 


13.5 
13.9 
14.3 
14.3 
14.4 
14.6 
14.6 
14.6 


14.4 
14.3 
14.6 
14.8 


14.8 
14.8 
14.7 


14.7 
14.7 
14.5 


Nov. 
18.9 


Nov. 


14.7 
14.9 
14.9 
15.0 
15.0 
15.1 
15.5 
16.0 
16.4 
16.5 
16.5 
16.4 
16.3 
16.5 
16.6 
16.6 
16.7 
16.5 
16.5 
16.3 
16.3 
16.1 


Dee. 


20.5 
21.2 


Dee. 


585 


2739 Joun McAnprews, a witness called for the defendant, 
testified as follows: 


Direct Examination by Mr. Chiperfield. 


My name is John McAndrews. I reside at Bradley, 
Illinois. My business is drainage. I have been engaged 

in that business for twenty years. During that time I 
have operated in the Kankakee Valley in Indiana. The 
2740 name of the ditching firm with which I have been con- 
nected is McAndrews & Bradley. We have been engaged 

in these operations. I have been engaged in Laporte 
County, Laporte. The county next to Laporte is Knox. 
Those counties are on the Kankakee River. I commenced 
2741 operations there about fourteen years ago. The Kanka- 
kee River was kind of a low valley, not really a ditch. It 
was just kind of a dredge in places, filled up with a great 
deal of filth and rushes and bars; not a very good water 
course. It did not flow very good unless the water was 
high. If there was high water it run pretty well. There 
were obstructions in the Kankakee River. They consisted 

of sand bars, rushes and willows, sunken logs; princip- 
ally bars, sand bars. The size and character of those sand 
bars, I would say, was from three and a half to four feet 

in places. This is the same Kankakee River that con- 
nects with the Desplaines River and forms part of the 
Illinois. It was about sixty-five miles above Kankakee, 
2642 where the river I speak of was in this obstructed con- 
dition. It was about twenty or twenty-five miles from 
Laporte, southwest. The river in high water would be 
probably 300 or 400 feet wide in places; in low water 
would be about 150 feet, probably. The character of the 
land lying on each side of the river at that time was not 
very good. It was marshy and wet and filled with rushes. 

It extended a good ways back. That extended pretty 


086 


near up to Hanna. Hanna is about fifteen miles from 
Laporte; a little southwest of Laporte; that would be 
on the right hand side as you go down steam, or on the 
north. On the left hand side it was more hilly and val- 
leys in between those hills and where those valleys or 
ravines run back, they would run back probably six or 
ten miles; low swampy ground. But the whole Kanka- 
kee Valley was pretty much of a swamp; must be 500,000 
acres or more of swampy condition extending over the 
entire valley of the Kankakee. There was not much of 
anything growing in those swamps only rushes and pond 
lilies and things of that kind. There was very little 
timber in those swamps; along the edge of the Kankakee 
there was some timber. In this entire 500,000 acres there 
was a little farming on the high places, on the knolls. In 
2744 the swamps themselves there was no farming. That 
extended up and down stream for about 100 miles. In 
those swamps at that time there was water. That water 
would be very deep. It would be so deep you would get 
2745 wet with waders on, high rubbers. Well, about two feet 
and a half deep. That condition extended over probably 
000,000 acres of that country. Water would stand upon 
this land. There was not much chance for the water to 
get away before the ditches were made. I started in to 
perform changing operations with reference to the Kan- 
kakee River. ‘Well, we started out near that little Kan- 
kakee, at the upper end of the Kankakee River, and we 
carried that down to the B. & O. Rairoad track. We put 
a ditch in about eight feet deep and fifty feet wide; dug 
2746 it out with a steam dredge. That ditch was six and a 
half miles long. Below there a firm by the name of 
Pollard & Goff got it from below there. They carried 
the Kankakee on down I think about ten miles and a half. 
Their ditch was about sixty feet on top; about eight or 
ten feet deep. Then the Pontiac Syndicate, they formed 


087 


a drainage district and carried it on down about seven- 
teen miles from there. Their ditch was from seventy-five 
to 100 feet wide; ten or twelve feet deep; seventeen miles 
long. I think the Pollard ditch was about ten and a half 
miles; probably a little bit more than that. We stopped 
at the state line. I think that brings it somewhere about 
2747 sixty miles to Momence. There was not anything done 
from Kankakee to Momence any more than to take out 
the rock at Momence. I think somewhere about 60,000 
yards was taken out. That was at the place known as 
the ledge of rocks. There was a ledge of rock running 
right across the channel. In fact runs across the two 
channels. There is a double channel at Momence, one on 
the south side and the other running around on the north 
side. The north side one is the one they took the rock out 
of and the south side one is in its natural condition yet. 
The ledge of rocks came above the water. The south side 
channel would take more water in low water—the north 
side channel would take more water in low water than 
2748 the south side would but in high water the water seemed 
to go around the south channel more. I think the ledge 
of rocks extended about eighteen inches to two feet. above 
the surface of the water before the change was made. 
After the change was made it done a great deal better but 
not enough out of it yet. I commenced my first section 
on the Kankakee about ten years ago. I know where 
English Lake is located. Well, English Lake was a bit 
of water with about twenty-five to thirty acres in it. It 
run from six inches to six feet. English Lake at that 
time had a communication with the Kankakee River. 


2749 The Kankakee River run right through the edge of 
English Lake. The condition of the stream before I com- 
menced work on it was not very good. The lake wound 
off to the south and throwed up a bar across the Kanka- 
kee here and there and there was a little neck that run 


088 


out where the overflow went; probably fifty feet wide; 
that carried the water from the Kankakee River and also 
from English Lake. There was no other outlet except this 
little outlet unless it was in high water. In high water 
the water went over this little neck altogether. [English 
Lake did not drain any of this country. There were trib- 
utaries coming into Hnglish Lake at that time. They 
2750 came from the northeast. I know where the Yellow 
River was. The Yellow River is a river about forty or 
fifty feet wide and carries a great deal of water, and the 
length of it I don’t know just how long it is. It comes 
from the south. I think it is about thirty-five miles long. 
Work was done on the Yellow River. J am familiar with 
the work that was done there. The Yellow River was 
improved for about ten miles and a half, up its channel, 
southeast. It came into the Kankakee about three miles 
above English Lake. The work that was done on the 
Yellow River, I think the bottom was forty feet by ten 
2751 to sixteen feet on top. The Yellow River was always 
a pretty good stream because it had washed out; it had 
made itself, I suppose, from the looks of it, and in case 
of high water it carried a good bit of water. The bottom 
of it was a little bit higher than the bottom of the Kan- 
kakee and it poured an awful lot of water into the Kan- 
kakee. These ten miles and a half I have spoken of began 
at the Ikankakee River and extended to the Yellow River. 
We built a boat in English Lake, a dredge boat, and we 
dug a mile and a half up through English Lake to the 
boundary line of our work. This work was all laid from 
where Pollard & Goff quit; ten and a half miles below the 
B. & O. Road. They got a portion of the Kankakee River 
the same time we did. I dug upstream and through Eng- 
hsh Lake a mile and a half and then I turned the boat 
2702 around in English Lake and came on down through the 
Kankakee River. I dug down then six miles and a half; 


089 


all of it was in the Kankakee River. I dug right through 
English Lake 106 feet wide and about twelve feet deep. 
That connected with the Kankakee River. After those 
improvements and the excavations were made in the Kan- 
kakee River the Mockler ditch was made and the Place 
2753 ditch. I know the location of a ditch known as the Box 
ditch. That comes from the south. The Mockler and 
Place ditches come from the north, the northeast. Well, 
for about 16,000 acres on the north side, I think there is 
a ditch on every section; over thirty miles of ditch in 
them 16,000 acres. I have told about the improvements 
on the main stream down to the Illinois line. Since that 
2754 time ditches have been constructed on both sides of this 
main improvement. There is one ditch coming from the 
north that connects pretty near direct with the Yellow 
River. They both enter the Kankakee along on one side 
of the Kankakee. The Yellow River on the south side 
and about ten miles and a half, the ditch enters on the 
south side, both going into the Kankakee about the same 
place but one on each side of the ditch. There are ditches 
down to the Illinois line on either side. A great many 
ditches, tributaries. From these ditches that extend off 
north and south there are laterals. There are lateral 
2755 drains extending into these ditches. Before I com- 
menced work there was no tile used in that 500,000 acres 
of land. I can’t say how extensively tile has been used 
since but a great deal of tile has been put in. These ditches 
all go to the Kankakee and take water there. The Mock- 
ler ditch has a base of forty feet on the bottom and is 
about ten feet deep. The Yellow River must be about 
sixty feet wide on top. The ditch put through English 
Lake was 106 feet. The Box ditch is about thirty feet 
2756 on top. The Place ditch is, I think, about the same size 
as the Mockler, about forty feet. The main ditches run 
from about twenty-five to thirty feet; forty feet bottom. 


090 


Before the time I commenced operations the rainfall that 
fell on that 500,000 acres just absorbed and soaked away. 
Now, it runs down to the Kankakee. This 500,000 acres 
now is good farming land, pretty much along the entire 
2757 length of which I spoke annual crops are now being 
raised there. They are selling that land now, I under- 
stand, for $125 an acre. On that 500,000 acres, where 
there was a swampy condition; there is no water stand- 
ing in that condition now. J have known the Kankakee 
River 16 years. Since the completion of this improve- 
ment I think the water is a little higher than it used to 
be in the Kankakee River at Kankakee. In times of or- 
dinary water I would say it was from four to five feet 
higher near the bridge at Kankakee. I am acquainted 
2758 with the Vermillion country, the Vermillion River. I 
did drainage operations above the Vermillion River in 
Ford County, Illinois. JI knew the Vermillion before I 
commenced operations there. That is, the Big Vermil- 
lion. It is the same Big Vermillion that empties into 
the Illinois River just above La Salle. That river was 
something like the Kankakee before I commenced opera- 
tions. A little sluggish and not very deep; middling 
wide. There was some obstructions in it, but not as bad 
as the Kankakee. I didn’t do much work on the Ver- 
million. JI did my work above the Vermillion. I com- 
2759 menced my work above the Vermillion in ’86. Well, 
that would be 26 years ago. We started very close to 
the Kankakee line in Ford County, a distance of about 
seven miles and a half, and we brought a ditch down to 
the Vermillion; a pretty good sized ditch, I think, if I 
remember right, about thirty feet top and fourteen foot 
bottom. The depth of that ditch was from seven and a 
half to eight feet. It passed through a pretty good coun- 
try, but swampy and marsh. I presume there were 
200,000 acres of swamps there before I commenced op- 


O91 


erations. I made a ditch seven miles and a half long 
there, the main ditch. There were lateral ditches made 
in each direction. There was one started up pretty near 
2760 at the head of the main ditch, only about five miles 
south, and run down and connected with the main ditch 
about a mile and a half above the Vermillion; and then 
there was. another ditch started lower down and also 
connected with the main ditch that went into the Ver- 
million River; and then there were four ditches on the 
south side that came from the southwest of Piper City 
and also went into the Vermillion and that went down 
the Vermillion about a quarter of a mile to get to those 
ditches below and into Livingston County, and we 
stopped there. At the time I commenced operations in 
the Vermillion country there was no improvement at 
all, or tile used in that 200,000 acres of land. After the 
improvement was completed the country was used for 
farming. It is today all farm land; the best farm lands. 
2761 Seven years ago there was a channel put from the head 
of the Vermillion River to the railroad—I think the Illi- 
nois Central—a distance probably of seven miles and a 
half, maybe more. I wouldn’t be sure about the dis- . 
tance. That channel was seven and a half miles long 
and I think something over 100 feet top. It was about 
8 to 10 feet deep. Before these operations were per- 
formed that transformed this country from swamp to 
farm lands, the rain that fell on that country just laid 
there. Since, the ditches and the tile take it away. They 
convey it practically to the Vermillion River and the 
Vermillion River emonties into the Illinois River. I have 
2768 done drainage operations on the Iroquois. I dug a 
ditch in Iroquois. I think it was about ten miles and a 
half long; I think somewhere about 15 or 16 years ago. 
The country was a little swampy, of course; not as bad 
as the others. I think there was somewhere about 10,000 


592 


2763 acres in the district. We dug this ditch and run it into 
the Iroquois River. The Iroquois River empties into 
the Illinois River. There was other work done in the 
same vicinity by others. I think about 200 to 250,000 
acres of land was drained by others than myself. Below 

2764 the point where I left off with my drainage operations 
the swamps ceased on the Kankakee. Below where the 
work ceased on the Ikankakee was a flat country. On 
the Vermillion below there was a pretty good fall. I 
have been engaged in other drainage work on the water 
shed of the Illinois. I done some work in Livingston 

County on a ditch known as the Oliver ditch. That coun- 

2765 try was more of lakes and ponds, swampy. ‘There were 

2766 big bodies of water, probably five to seven acres in 
them, and then there would be a neck running from one 
to the other; a little channel running down and they 
would run away, soak away. Those lakes extended over 
probably five miles. We dredged there at the upper end 
and came down through those lakes, a distance of about 
12 or 124 miles. We connected that ditch with the river. 
1 forget the name of the river it went into. It went into 
a little river or creek down below Chatsworth. It finally 
goes to the Illinois. I think there were about 12,000 
acres in those operations. J think the ditch was six foot 

2767 bottom and about seven and one-half feet deep. I con- 
structed that ditch about 12 years ago. After that ditch 
was constructed there was an increase in the use of tile. 
Today it is pretty good land. It is used for farming. 
Before that time it had not been very much use for farm- 
ing—pasture principally. 


Cross-Hxamination by Mr. O’Conor. 


The last work I testified to was located down near 
Chatsworth. Chatsworth is about forty miles from La 
2768 Salle. I think it would be a little southwest. All the 


593 


work that I did in constructing what is known as the 
Oliver ditch was completed about 12 years ago. I know 
pretty near where Henry is. I know that is a dam at 
Henry. I don’t know whether Chatsworth is further 
2769 down the river than Henry. La Salle might be more 
than 25 miles from Henry; I don’t know. No, sir, l 
don’t know where Lake Senatchwine is. I am not very 
well acquainted on the Illinois. That work I did on the 
Iroquois was all completed 15 or 16 years ago. The 
water that came into the Iroquois on account of any 
drainage I put there some 15 or 16 years ago was com- 
2770 ing into the [linois prior to the year 1903. We did 
not change the natural flow of the water around Chats- 
worth. We followed the water. We did the same thing 
up in Iroquois. The first work I did along the Vermil- 
lion was in the year 1886. In that year put in a drainage 
system to drain some 200,000 acres of land. I never was 
along on the Vermillion running from a point somewhat 
east of the [linois Central right of way at La Salle, ex- 
tending as far as Streator, Illinois, subsequent to the 
2771 year 1886, except on the train, as I went through on the 
train. You can see some from the train. I have been 
on the Vermillion River, from the Illinois Central to the 
head of the Vermillion, along the ditch. The land 1 
drained in the year 1886 was in the natural water shed 
of the Vermillion. I don’t know much about the Ver- 
million River anywhere in or about La Salle, subsequent 
to the year 1886. J walked over that work with a view 
of taking it. That part of the river I am pretty well 
2772 acquainted with. It was nine or ten years ago that I 
started that work on the Kankakee. I know a man by 
the name of Tuesberg.. I have known him for 14 years. 
He did some of the work I mentioned down in the Kan- 
kakee. I have not testified to any work done any place 
that did not come under my own personal observation. J 


094 


done the most of the work on the Kankakee myself. I 
2773 have been along the Vermillion in the past ten years; 
about seven years ago. ‘The boat was there to work 
there on the Vermillion River. I was there afterwards. 
2774 I am acquainted with the condition of the Kankakee 
River at Momence during the summer time. I think it is 
higher now than it was during the ’90’s. I have actually 
observed it. I think it is higher now in the summer time. 
I think it is probably from three and a half feet to four 
feet higher. There is no doubt about it in my mind 
2779 that it is higher. I think we did put water into the 
Kankakee River where the natural water shed was not 
in that direction. Well, we done it this side of Knglish 
Lake where the oil pipe crosses the Kankakee. I pre- 
2776 sume it was the natural water shed. They have brought 
no water to the Kankakee where the level of the ground 
or the incline of the ground was not in that direction. 
There is a difference today in all that land down there 
as to the level of the water; J think about four and a 
2777 half feet. Most of the sub-soil is sand and gravel. A 
heavy rain would affect the tile drains and ditches. If 
the ground absorbs the rainfall, it would naturally go 
to the tile and from the tile to the ditch. It takes a 
2778 pretty good rainfall to put the water on the surface of 
the ground. It would take a pretty good rainfall to get 
those ditches in working order. There don’t a great 
2779 deal of water stay in the ditches. When English Lake 
was drained the water ran off a good deal of it. I know 
the condition of the Kankakee River at Momence during 
the summer time. I was there last summer. I think I 
saw it; about July or August I was there. The Kankakee 
River during those months was about 150 feet wide, I 
would think. 


2781 Mr. Curperrienp: There are a couple of questions, 
Mr. O’Conor, that I overlooked. I didn’t have a chance 


095 


to go over it with Mr. McAndrews. We both just got in 
town. I will ask them now, if it is agreeable. 
The Courr: Yes. 


Direct Examination (continued) by Mr. Chiperfield. 


Before I commenced work on the Kankakee River there 
were bends in the river. The biggest bend was located 
below English Lake, right where the oil pipe crosses the 
Kankakee. That is what they call the Ox Bow Bend. 

2782 It was three and a half miles around that bend. It was 
about half a mile or less across. In the Kankakee River, 
where I ceased my work, or thereabouts, there has been 
a difference in the water stage of the Kankakee River 
of about three and a half to four feet. Close to the end 
there, at the county line, the proposition was that the 
Kankakee would be carried to Momence, and the syndi- 
cate—Mr. Tuesberg and the rest of them—advised me 
to leave the boat there with the prospect of continuing 
the work. I took the machine off the boat and bored a 
hole in her and sunk her; let her sink, filled her with 
water, for the purpose of preserving the lumber from 
the sun and rain and so on. And of course I would go 
there once in a while to see how that boat was, with a 
view of raising her, taking her out and putting her some- 

2783 where else, but the water has been so high that I would 
have to build a place at the side, put a dam around her 
and pump the water out to get her up, and I have been 
waiting for the water to go down and it hasn’t gone 
down so I could get at her. That is the reason I know 
the water is higher than before we straightened the 
Kankakee. 


Cross-Exammation (continued) by Mr. O’Conor. 


I think I noticed the water at Momence in the Kanka- 
kee in 1910. I have not noticed the water at Wilmington. 


096 


2784 Yes, all of this water passes by Wilmington. The Kan- 
kakee comes into the Illinois River, I can’t just recall the 
name of that town now. I practically know where Mor- 
ris is. I have been in it, but I didn’t pay much attention 
to it. I don’t know exactly where the Kankakee comes 
into the Illinois. I have been through there, but I never 
took any particular notice of it. I know where Devine, 
Illinois, is located. JI couldn’t say whether Devine is 

2785 east or west of the point where the Kankakee comes 
into the [lhnois. I came to Ottawa yesterday; have 
been here ever since. I am not getting anything by way 
of compensation. I never asked the company for a cent. 
It is not understood that I will be paid anything by the 
Sanitary District in here. I came here on notice from 
Mr. Beebe. 


Mr. CuriperFIeELD: Now, if your Honor please, I want 
to introduce in evidence a certified copy of a map of 
the State of Wisconsin, showing the water shed of the 

2786 Fox and Desplaines River, and I want to ask leave to 
withdraw the original upon filing a compared copy. 


The Court: I grant that. 


Mr. CHIPERFIELD: JI want to ask leave to introduce 
and I offer in evidence a map of the State of Indiana, 
showing the water shed of the Kankakee River, a certi- 
fied copy, and I desire to ask leave to withdraw the orig- 
inal upon the filing of a compared and precise copy. 


The Court: I grant that. 


Mr. CurpeerFietp: I also want to ask leave to intro- 
duce a map of the State of Illinois showing the water 
shed of the Illinois River and its tributaries within the 
State of Illinois and desire to have leave to withdraw 
the original, so certified, upon the filing of a compared 
and precise copy. 


The Court: I grant that. 


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598 


2787 Whereupon precise copies of said maps were substi- 
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2788-2789 Certificates accompanying said maps, being certi- 
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601 


2794 Frank J. Traut, a witness for the defendant, being 
sworn, testifies as follows: 


Direct Exammation by Mr. Chiperfield. 


My name is Frank J. Traut. I reside at Beardstown, 

2795 Illinois. I am an engineer and contractor. I have re- 

sided in Beardstown 18 years. I know the Llinois River 

from the Henry dam down to the mouth of the stream. 

I am familiar with the river from Hennepin down. I 

am acquainted with the drainage districts that have been 

constructed in that river. I have constructed some of 

those districts. I have been connected with the construc- 

tion of drainage districts in the valley of the Illinois 
for 18 years. 


The drainage districts that have been constructed in 
the valley of the Illinois, and the areas of the same which 
are known to me starting at Hennepin, are as follows: 

2796 Hennepin District, on the east side of the river, 3,000 
acres. Hast Peoria District, 800 acres. Iamarsh Dis- 
trict, near Pekin, on the west side of the river, 2,500 
acres. Spring Lake District, on the east side of the 
river, 14,000 acres. Lacey District, opposite Havanna, 

2797 about 5,500. acres. Otter Creek District, on the west 
side of the river, 3,000 acres. Coal Creek District, oppo- 
site Beardstown, on the west side of the river, 7,000 
acres. Crane Creek District, on the west side of the 
river, just below Coal Creek District, 5,500 acres. Merido- 
sia Lake District, on the east side of the river, 5,000 acres. 
McGee Creek District, opposite Meridosia, on the west 
side of. the river, 12,000 acres. Big Swan District, on 
the east side of the river, opposite Florence, 14,000 acres. 
Hill View District, on the east side of the river, 13,000 
acres. The Roberts District, Kaiser District and Hart- 
well District, which have, combined, contained 12,000 


Lo 


602 


798 acres. The Keetch District, sometimes called the Fair- 


banks District, 10,000 acres. The li!dred District, 10,000 
acres. The Nutwood District, 11,000 acres. 

There are a number of proposed districts, some of 
them under way and some which have not yet been com- 
pleted. The aggregate acreage of these districts is about 
150,000 acres. 

The levees constructed by these districts on the river- 
side average from 12 to 20 feet in height above the 
ground on which they were built. The first district was 
constructed in 1890, a small district. Most of them have 


2799 been constructed in the last 10 or 12 years. From the 


map Exhibit 25, I have located La Salle. (And the wit- 
ness then proceeded to point out on the map the location 


2800 of the various drainage districts deseribed by him.) 


2801 


2802 


I was connected as engineer or contractor with nine or 
ten of these districts. 

In Hennépin District the length of the levee along the 

river is about 4 miles; Hast Peoria, 14 miles; Lamarsh, 
4 miles; Spring Lake, 16 miles; Lacey, 4 miles; Otter 
Creek, 14 miles; Coal Creek, 8 miles; Crane Creek, 2 
miles; Meridosia, 7 miles; McGee, 9 miles; Big Swan, 10 
miles; Hillview, 8 miles; Hartwell, 10 miles; Fairbanks, 
8 miles; Eldred, 10 miles; Nutwood, 10 miles. Some of 
these districts are pretty close to the river and some of 
them are less than 100 feet from the edge of the river 
bank, extending back to 400 feet. 

The Hennepin District will average 100 feet from 
the river. Hast Peoria is less than that. Lamarsh from 
90 to 100 feet from the river. Spring Lake was 100 feet 
at one place to about 600 feet. Lacey is 100 feet from 
the river bank. Otter Creek half a mile from the river 
bank. Coal Creek 100 feet from the bank. Crane Creek 
100 feet. Meridosia is 250 feet from the bank of Meri- 
dosia Lake. MeGee 100 to 300 feet from the bank of the 


603 


river. Big Swan from 200 to 400 feet from the bank. 
Hill View from 200 to 400 feet from the bank. Hartwell 

2803 from 100 to 300 feet from the bank. Fairbanks from 100 
to 300 feet from the bank. Eldred from 200 to 400 
feet from the bank. Notwood from 200 to 400 feet 
from the bank. 

Before the levees were constructed the Illinois River 
in times of high water covered practically all of the lands | 
enclosed by the levee districts. In the instance of the 
Meridosia Lake and the McGee Creek levee, they are 
opposite each other for a distance of about four miles. 
I have personally been in each of these levee districts 
many times and the information which I am giving the 
jury is based upon personal observation. 

In the vicinity of Peoria before these levee districts 
were constructed, in times of extreme high water the 

2804 river would be four miles in width; at Havanna about 
4 miles; Beardstown 4 to 6 miles; Meridosia 5 to 6 miles; 
Kampsville 4 miles. I cannot state how wide it is at 
the mouth of the river, but it gets very wide. I have ob- 

2805 served the Mississippi’River in times of high water. 
In the Mississippi River during high water during 1903, 
we had dead water back in the Illinois up to one mile 
below Beardstown, 88 miles from the mouth of the river. 


Cross-Examination by Mr. O’Conor. 


Never have been in the employ of the defendant. Not 

9806 in their employ except in the sense I have been called 
to testify in this case. 

29807 I mean to give the exact acreage in these various dis- 
tricts from my personal knowledge acquired from the 
reports of the engineers in making their reports for the 
commissioners, which were filed in the County Court giv- 
ing the acreage as to the acreage in the 40 tracts. My 
testimony as to areas is based upon something that some- 


604 


body else did. J never measured up the acreage in the 
district. I would know it just as well as anyone else 
knows it. ‘he commissioners of the district never meas- 
ure it up, but they take the engineer’s measurements and 
figure up the assessments. I can judge somewhere near 

2808 the acreage in the district by looking at it and going 
through it. 

2809 All the levees I refer to are farther down the river 
than the dam at Henry, except the Hennepin. 


2810 CHarutes H. Tunsperc, a witness for the defendant, be- 
ing sworn, testifies as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Charles H. Tuesberg, I live at LaCrosse, 
LaPorte County, Indiana. My business is managing 
lands. I have been so engaged for 12 years. I am ac- 
quainted with the larger portion of the Kankakee River 
in Indiana and the lands adjacent thereto. Before the 
reclamation was commenced I was acquainted with the 
entire valley. I first went through it some 15 or 16 years 

2811 ago; it was a swampy country. There was no artificial 
drainage except a little in Lake County. 


The valley of the Kankakee extends from near South 
Bend in Indiana to the state line, about 80 or 90 miles 
straightened. The valley embraces in the neighborhood 
of a million acres; with the exception of sand ridges the 
probability is three-fourths of the valley was low, wet 
swampy land. The valley, a large portion of it at least, 
has only about a foot of fall to the mile. So it lays very 
level in there and was in a very swampy condition on 
account of having no drainage. 


2812 Before the reclamation operations were commenced, 
the swamps consisted of level pieces of land covered by 


605 


marsh hay, cat tails and rice straw. In the spring of the 
year there would be water in the marsh. The marsh 
east of LaCrosse would be two or three or four miles in 
width and probably from six inches to two feet in depth. 
Before there was artificial drainage the water accruing 
from rainfall in that section of the country remained 
largely on the land in the low places until it was absorbed 
by atmospheric conditions. After the June freshets, 
when the warm weather came and the weather was drier, 
the water would be absorbed, both sink away into the 
ground and being taken up into the atmosphere. 


The river is very crooked and very sluggish. In its 
natural state it has about 4$ to 5 inches of fall to the 
2813 mile. It is very crooked. 


By reference to Exhibit 25, it appears that the upper 
ond of the valley, the City of South Bend on the St. Joe 
River, is located at the head of the valley. The valley is, 
perhaps, between South Bend and the head waters of 
the Kankakee, is only two or three miles on the divide. 
It is a marshy country, all of this territory. Very much 
of that was covered with muck land. It extends from 
South Bend or near South Bend to a point near the 
town of Momence, about seven miles in Illinois from the 
state line. The heavy mark on the map indicates the 
Kankakee River proper. 


I am familiar with the tributaries of the Kankakee 

2814 River in Indiana, the largest of which is the Yellow 

2815 River. Some portions of the valley are wider than oth- 

ers. It probably extended ten or eleven miles and some 

places a little wider than that before the reclamation was 
commenced. 

I knew English Lake before reclamation proceedings 

were commenced. It was a low flat marsh, the water re- 

mained on usually from six inches to a foot in. depth. 


606 


Some seasons it would dry up but mostly water was 
there. It covered six to eight square miles. A number 

2816 of small creeks and sloughs flow into it. English Lake 
is connected with the Ullnois River through the natural 
channel of the Kankakee. 


The Kankakee River in the state of nature at its upper 
end was known as the Kankakee swamps. This terri- 
tory had a large number of muck lands composed of veg- 
etation that during the centuries had grown and filled up 
the smaller lakes. Some of these lakes were ten to thirty 
feet in depth. They generally filled with what is known 
as muck which made it dangerous for animals to cross. 

2817 In that territory there was a large number of those 
parts that had been formerly lakes, that is one of the 
reasons it held the water as it did, there wasn’t enough 
natural drains. 


With reference to these the river lies in the lowest por- 
tion of course, and formed the only drainage there was 
for these bogs and swamps and other low places. The 
river only averaged a fall of a foot to the mile. 


In crossing and cutting from the Baltimore & Ohio run- 
ning down 22 miles and a quarter on a survey we cut 
across the river 70 times, so you can see how crooked the 

2818 stream was. The upper portion was probably 20 to 30 
feet in width and from three to four feet in depth and as 
you come down it gets wider. There are a great many 
bends in the river. Some of them were very abrupt and 
in traveling in a skiff you would go back almost to the 
point of starting in going, for instance, a distance of a 
quarter of a mile you would have to go around islands. 


2819 Down towards the Momence line the river was prob- 
ably 70 or 80 feet in width and shallow. 

About 1901 reclamation proceedings commenced. The 

valley on the north side of the river from South Bend 


607 


to Momence is a strip of clean prairie with very little 
timber. On the south side itis very different. The terri- 
tory is interspersed with sand dunes, serub oak, timber, 
sloughs and swales, and is very much more difficult to 
drain, and the river is so sluggish that the land was never 
cultivated. The land which I have just described was 
embraced within the description of the swamps which I 
gave a short time ago. 

2820 In improving the river the river proper was com- 
menced at the Baltimore & Ohio Railroad. That is the 
eastern portion of LaPorte County, about the center. It 
is directly west of Walkertown. The work was executed 
by a powerful dredge. The bottom of the ditch was 
started 40 feet in width, the top 56 feet, with an average 
of 8 feet in depth. That was known as the Place Ditch. 
It ran down nearly ten miles. It cut through the bends 

2821 at the most advantageous points. 


In connection with the Plate Ditch, there were 18 miles 
of laterals between Walkertown and the river. The lat- 
erals were made 18 to 22 feet in width and from 5 to 6 
feet in depth, with branches. Some of them extended 
back 8 or 10 or 12 miles into the country. They followed 
th contour of the low land, some of them farther apart 
than others. 


In connection with the branches that extended from 
the laterals, tile has been used in carrying on the recla- 
mation work. 


98922 There were swamps on either side of the Plate Ditch 
then. Now there are farm lands well developed and 
drained. Then there were only cabins and shack houses 
on the sand dunes, now the farms are well improved. 


The next section of work done on the river commenced 
a little south of the Fort Wayne Railroad, east of Hanna, 
extending on the west line of LaPorte County, 17 miles. 


608 


The ditch bottom was widened to 45 or 50 feet and the 
average depth was 8 feet. The width at the top at the 
widest part was 70 feet. It was cut through the bends of 

2823 the old channel at the most advantageous points, and 
many points where it could it would strike from one point 
in the river and follow the channel perhaps 20 to 30 rods 
in a general way, coincide with the old channel. 


During the 10 or 12 years in which we have been oper- 
ating there have been 40 or 50 drainage systems cut into 
the Kankakee River. In this reclamation project that 
we are speaking of there were a great many laterals put 
in, I think between 20 and 30. They were mostly 20 
feet in width and 5 feet in depth, in addition to which 
there are drainage ditches and laterals. 


2824 The Robbins Ditch is 14 miles in length, about 20 feet 
in width to 40 feet in width, 8 feet deep. In places there 
were tile used in connection with the laterals. 


The next stage of the river development was that each 
district in the neighborhood vied with the other to get 
dredged ditches in as rapidly as possible, so we had six 
or eight dredges at a time for several years. The recla- 
mation work was finished in 1906. About 46 miles of the 
river channel was deepened and straightened out alto- 
gether. 


2825 I know the larger portion of the ditches which enter 
the river; commencing at the northern end I will give 
you their length, width and estimated flow. We com- 
menced with the work at the Baltimore & Ohio Railroad 
about four miles south of South Bend and extended to 
19 miles. The average width was 30 to 35 feet and seven 
to eight feet in depth. Then the Place ditch which I 
have described. The Robbins ditch was 14 miles in 
length, 30 to 40 feet in width and the flow was three or 
four miles an hour. 


609 


2826 The Bliss ditch was five miles long, 18 feet wide, five 
feet deep and flowed three miles an hour. 

The Hamlet ditch was six miles in length, 20 feet wide 
and six feet deep and flowed three miles an hour. 

The Jaine ditch was six miles in length, 18 feet wide, 
five feet deep and flowed three miles an hour. 

The Long ditch, five miles in length, 18 feet wide, five 
feet deep and flowed about three miles an hour. 

The Whittem ditch was about seven miles in length, 
20 feet wide, six feet deep and flowed four miles an 
hour. 

The Salisbury ditch was five miles long, 20 feet wide, 
six feet deep and flowed three miles an hour. 

The Hanna ditch was 10 miles long, 20 feet wide, five 
feet deep and flowed three miles an hour. 

The Davidson ditch, 12 miles long, 20 feet wide, six 
feet deep and flowed three miles an hour. 

The Box ditch eight miles long, 20 feet wide, 12 feet 
deep, flowed two miles an hour. 

The MeLaughlin ditch 15 miles long, 20 feet wide, five 
feet deep and flowed two miles an hour. 

The Bergland ditch four miles long, 20 feet wide, four 
feet deep and flowed two miles an hour. 

The Hayville ditch two miles long, 20 feet wide, five 
feet deep and flowed two miles an hour. 

2827 The Myers ditch five miles long, 20 feet wide, five feet 
deep with a two-mile flow. 

The Tuesberg Land Company ditch, six miles long, 
20 feet wide, five to six feet in depth and about a two 
mile flow. 

The Neuston ditch, five miles long, 18 feet wide, and 
five feet deep, with about a two-mile flow. 

The Larimore ditch, six miles long, 20 feet wide and 
six feet deep, flowed two miles an hour. 


610 


The Yellow River is from 30 to 40 feet in width. It 
has about four feet fall to the mile. 

The Williams ditch is about 14 miles long, six feet 
deep and 25 feet wide, with a flow of four miles. 

The Jordan ditch four miles long, 20 feet wide and five 
feet deep and flows four miles. 

2828 The Elsby ditch is 14 miles long, 20 feet wide, six 
feet deep and about four miles flow. 

The Mockler ditch 12 miles long, 30 feet wide, and 10 
feet deep, with three miles flow. 

The Wanata ditch, eight miles in length, 20 feet wide 
and six feet deep with about a three-mile flow. 

Hog Creek ditch, 10 miles long, 20 feet wide, six feet 
deep and about four miles flow. Some of that territory 
has a six or seven mile flow, so it makes it a greater 
current. 

Haskell’s ditch is 10 miles long, 20 feet wide, six feet 
deep and about 10 miles flow. 

Reeve’s ditch is 12 miles long, 25 feet wide, and six 
feet deep with about three miles flow. 

The Lyon’s ditch 4 miles long, 16 feet wide, 5 feet deep 
and about 2 miles flow. 

The Cook ditch, 10 miles in length, 30 feet wide, six 
feet deep and about three miles flow. 

The Cook Arm three miles long, 20 feet wide, six feet 
deep and about a four-mile flow. That has a ten-foot . 
fall in three miles. 

Crooked Creek, 14 miles long, 20 feet wide, six feet 
deep and four miles flow. 

2829 Befogle ditch, 10 miles long, 18 feet wide, five feet deep 
and three miles flow. 

The Whitfield ditch, 12 miles long, 20 feet wide, five 
feet deep and two miles flow. 

The Hodge ditch, 10 miles long, 25 feet in width, six 
feet deep and about two miles flow. _ 


611 


The Otis Arm ditch, 12 miles long, 18 feet wide, five 
feet deep and about two miles flow. 

The Moffett ditch, 12 miles long, 18 feet wide, five feet 
deep and about two miles flow. 

The Singleton ditch, 16 miles long, 30 feet wide, six feet 
deep and two miles flow. 

The Brown ditch, 13 miles long, 25 faet wide, six feet 
dece and two miles flow. 

The Ackerman ditch, seven miles long, 18 feet wide, 
five feet deep and two miles flow. 

The Sherron ditch, six miles long, 18 feet wide, five feet 
deer and three miles flow. 

Then there are 17 miles of the river work known as 
the Reclamation Company’s ditch. That was the river 
proper. These are the principal ditches. 

2830 The total length of these ditches is over 400 miles 
extending on either side of the river. I have not named 
all of them. There are a great many more that have 
been made since, in the last three or four years, many 
of them, whose length would aggregate 75 to 100 miles 
and whose width is from 25 to 30 feet. 

2831 In addition to the million acres of the Kankakee River 
watershed there has been about 400,000 acres of the Yel- 
low River watershed throughout Indiana reclaimed. The 
water passing through these ditches gets away very rap- 

2832 idly now in the new channel of the river. It goes down 
in the Kankakee River. 

Of my own knowledge I know the Kankakee River 
empties near Wilmington, just below Wilmington, into 
the Illinois River. I was familiar with the Illinois River 

2833 before the reclamation project was carried into effect 
below that point and have been familiar with it since 
the drainage proceedings were completed. It is higher 
now below the point where the reclamation project dis- 
charges its flow of water. In the spring the water comes 


612 


off very rapidly. It would probably be two or three feet 
higher. The stream is two or three miles wide in places 
and in the summer when most of our laterals runs dry 

2834 the rain that is not absorbed or required by the country 
passes away down the channel into the Kankakee River. 
Since the reclamation project the Kankakee River car- 
ries off more water than it did before. 

I am familiar with the point known as the ledge of 
rock at Momence. JI have seen and observed it. I 
know about the removal of that ledge of rocks. The state 
of Indiana appropriated $40,000 for removing it for the 
benefit of Indiana years ago and the commissioners 
commenced at the upper end of an island in the river 
just south of Momence and removed the dam which low- 

2835 ered the water at that point probably five feet, at the 
high point, the apex of the ledge of rocks there is a seven- 
foot fall, but these people did not succeed in benefiting 
the state of Indiana by the removal of that because they 
commenced too low. The removal of the stone never 
affected the drainage of Indiana because it was too low 
down below the high point. The water which flows upon 
that country is more quickly removed than it was before 
these drainage operations were commenced, and it is 
removed six to eight times as fast. It has three times 
the natural fall and only one-third the distance to go to 
get to the channel. In times of heavy rainfall the water 

2836 over a large area fills the channel of the Kankakee 
River, the new channel and the old channel also; takes 
it into the old chanel and it is held there until it passes 
down on into the [llinois River. The reservoir at the 
point where it starts out in time of extreme high water, 
would be about three or four miles wide, 10 or 11 miles 
in length and six inches to three feet in depth. It passes 
over the rock ledge very much more rapidly than it would 
otherwise. Usually it would stand after a time of high 


613 


2837 water in the country for a period of two or three weeks. 
The country which I have been speaking about is all per- 
sonally known to me and the matters testified to have all 
come under my own observation. All the territory cov- 
ered by that river project has come under my observa- 
tion; I have personally seen and observed all of these 
ditches except possibly a half a dozen. Prior to 1900 
there has been no drainage work at all done in this coun- 
try with the exception of a few ditches which I men- 
tioned. And practically all of this work has been done 

2838 since that time. 


2839 Cross-Examination by Mr. O’Conor. 


I have a notation and paper here. It is simply an 
estimate in my judgment of the quantity of flow. Down 
at the mouth of the Kankake River there has been no 
enlargement at all; the enlargement has been farther 
back at the upper end. 

There is a dam located at the City of Kankakee. The 
dam may have been raised three feet this year, I don’t 

2840 know it. There is adam at Wilmington. That dam was 
not raised this year so far as I know. 

I am able to state, if I know the fall in the territory 
through which it passes, how fast a stieiaae is flowing. I 
ean form a judgment of it. 

I got the figures as to the fall from the levels of the 
engineers in charge. I know the fall from the north. 
Much of that territory comes down from five to six feet 
fall. Of course the water pushes down rapidly. <As to 
the specific information as to the fall, I got that from 
the engineers that were doing our work. It was work 
I was supervising and had connection with, helping to 
put it in. Some of the figures are from work that I 
did not do personally but it was work I was supervis- 


614 


ing. I got the acreage figures from the Government 
report, also from the engineer’s statement, the Govern- 

2842 ment engineer that did the work. My testimony on 
the question of acreage is not based upon information 
which I secured myself. 

I have testified in a similar case within a month at 
Princeton; twice within six weeks. I am not here in an- 
swer to a subpoena. I am only receiving my expenses 
from the Sanitary District and whatever they see fit to 
give me for my time. I am not under pay as a salaried 
person or anything of that kind. There has been no ar- 
rangement for my time or what they would pay for my 
time. 

2843 The drainage system that I have talked about lowered 
the water level of the land about five feet. It takes quite 
a heavy rain to show a little water in the ditches because 
the ground is dried out. It would have to be a pretty 
heavy rain to show very much after the spring rains 
when the ground is full of water. In the summer time, 
during the farming season, the drains are practically 
dry. 

The Kankakee River was not dry over the rock ledge 
at Momence this year but it was so you could see a 

2844 ripple and there was probably a foot of water. It was 
very low for this stage. It was about 100 feet in width. 
I have seen the Kankakee River during the summer time 
at Wilmington since this drainage system was put in, 
and the river there is so dry you could see the round 
stones all over the bottom of the river. 


2845 Re-direct Examination by Mr. Chiperfield. 


In the spring when the ground is full of water the 
ditches fill up and sometimes overflow in the low places 
for a time, but the water is carried off into the old river 
bed and the new channel goes away very rapidly. 


615 


Re-Cross Examination by Mr. O’Conor. 


After the ground is full of water in the spring the 
ground is full of water. Now the water that goes into 
the ditch when the ground is fuil of water would overflow 
if there was no ditch there, and would find its way into 
the Kankakee River. 


2846 Re-re-direct Hxamination by Mr. Chiperfield. 


I do not mean to say it would find its way into the 
Kankakee just the same as though no ditch was there. 
It would find its way into the Kankakee River more 
slowly. It would not have found its way to the Kan- 
kakee River from the 750,000 acres of marsh land; it 
would stay in that territory. 


W. H. Benttey, a witness for the defendant, being sworn, 
testifies as follows: 


Direct Examination by Mr. Chiperfield. 


My name is W. H. Bentley; I reside in Pontiac, [li- 
2847 nois, Livingston County, since 1867. I am overseeing 
some lands in Livingston County; haven’t any other 
business. Have been a farmer nearly all my life. I know 
the little and big Vermillion Rivers. The Vermillion 
River flows right through our town. Pontiac is there 
on the map; with reference to the figure ‘‘1294’’ it ap- 
pears just below and to the right. The Big Vermillion 
River runs [| think through the town and the Little Ver- 
2848 million branches off up here. The Little Vermillion 
comes into the Big Vermillion. I know the Big Ver- 
million for 50 miles. 
The Iroquois River also flows in that part of the state. 
It is east of us. 


616 


During the last three or four years there has been a 
large dredged ditch started in the Iroquois County near 
LaHogue running in a northeasterly direction and then 
turning to a northwesterly direction through a part of 
Fort County and down through Livingston County and 
coming into the Vermillion River below Wing, Illinois: 


2849 When they constructed that Vermillion River up near 
the head, it was very crooked and grown up with willows. 
It was a flat, swampy country there and they had a 
dredge boat in there and they dredged that out and 
straightened the river and tock those willows and every- 
thing out. There was about 40 to 50,000 acres of low, 
swampy country where it was overflowed in times of 
high water at that place in the eastern part of Living- 
ston and the western part of Ford County. The land 
before it was reclaimed was only good for short crops | 
if we had a very favorable year and a great deal of it 
not then. In the wetter years the water would stand 
over nearly all of it all summer in some places. 

2850 In the construction work they dredged a ditch there 
in the neighborhood of 25 miles long, 20 to 25 feet wide 
with an average depth of seven feet and about an eight- 
foot bottom. They constructed some laterals from this 
ditch. Before this construction in the Vermillion country 
the water that fell in times of heavy rain would just 
soak away and gradually go away by evaporation and 
some of it of course would go down the slough as it was 
then. Since the construction the water goes into the 

2851 ditch immediately and into the Vermillion River. The 
Vermillion River empties into the Illinois River near 
La Salle, Tllinois. | 

Where these swamps were before this work was done 
the land is all farms now, all under cultivation. The 
work was all done and completed in 1910. The water 
that falls in that country is now carried off very much 


617 


more rapidly than before. Before the ditch was made 
and the river dredged the water would stand practically 
all summer. Now it don’t stay. They farm the land 
now. That is true throughout the entire length of the 
territory that I have mentioned. 


In the last 10 or 12 years there has been a great dif- 
2852 ference in the use of tile drains within Livingston 
County, nearly every township. Up to about six years 
ago, during the last 10 or 12 years there was a great 
deal of tiling done in our county. All the outlets were 
in small open ditches, only a few of course would go 
to the larger streams, but in the last six or seven years 
they have been putting large tile in these open ditches, 
say from 16 to 22-inch tiling and connecting the branch 
ditches up with them and making a new complete system 
of the whole thing, nearly all over our county. And 
they have deepened the tiling in the county and have re- 
duced the water level from one to two or three feet. It 
earries off the surplus water very rapidly and in large 
2853-4 volumes, and the flow is continuous during all the time 
when there is wet weather in the country. The water 
goes into the Vermillion River and its tributaries. The 
Vermillion River in wet times rises much more rapidly 
than it did in former years and stays up longer. We 
have more water now that gets into the river than there 
used to be. This has been true during the last six to 
eight years. 


Cross-Examination by Mr. O’Conor. 


The water is now being carried into the Vermillion 
by these ditches that flow that way in the state of nature. 
The ditches that were put in there, the lay of the land 
is that way. 


618 


2855 C, J. Hopes, a witness for the defendant, being sworn 
J b] >] 
testifies as follows: 


Direct Examination by Mr, Chiperfield. 


2856 My name is C. J. Hobbs. I reside at Kersey, Indiana, 
in Jasper County, 18 miles from Rensselaer, the county 
seat. I am a civil engineer and surveyor and have been 
for 11 years, during which time I have given my atten- 
tion to drainage engineering. 

I have been associated with B. J. Gifford, a gentleman 
who formerly resided at Kankakee, and who owned a 
large amount of land in Indiana, and who also owned 
a short line of railroad called the Chicago & Wabash 

2857 Valley. I have been engaged in the reclamation work 
11 years in reclaiming Indiana lands by ditches, dredg- 
ing and tiling. I have been connected with Mr. Gifford’s 
jands. They are located in Jasper and Lake Counties, 
Indiana. In Jasper County they are northeast of Rens- 
selaer, the southeast corner of Lake County. 

2858 The Iroquois River has its source partially in Jasper 
County, practically all of it, and empties into Kankakee 
a few miles east of Kankakee. I know the Iroquois 

2859 River from its source down to about eight miles from 
the Illinois state line. I am acquainted with that por- 
tion of the Kankakee River which runs through or be- 
tween Jasper and Porter Counties and between Lake and 
Jasper and Lake and Newton Counties. I have surveyed 
generally in this country for 14 years. I am familiar 

2860 with the drainage operations that have been conducted. 
They consist of dredged ditches, tiling, some ditching 
done with teams and open ditches. The dredged ditches 
are located in Jasper, Porter and Lake Counties. Some 
of them I laid out and measured. 

The first ditch T laid out was one of Mr. Gifford’s 


619 


ditches, his main outlet in fact. It was partially built 
before I was employed there. We lowered the bottom 
of it about four feet and cleaned it out for about five 
miles down there and cleaned it out to a uniform fall 

2861 of a foot and a half a mile. The ditch commences in 
the center of Mr. Gifford’s lands and runs _ south- 
west towards the Iroquois River. It is five miles long. 
We built a new ditch in connection with it and parallel 
to it. These ditches drained 30 or 35,000 acres. Before 
the ditches were completed the lands were covered with 
an average of a foot to a foot and a half of water in 
the spring and during the freshets it was probably 
higher; possibly may be a little lower than that in dry 

2862 season. These ditches were constructed within the last 
fifteen years, and the ditch was deepened between 1902 
and 1903. 

Connected with the 35,000 acres of land there was 
about 150 miles of dredged ditches. The last ditch con- 
structed was constructed about two years ago. There 
is a ditch in the north part of the county running into 
the Kankakee River. They carry water from the higher 
land down to the Kankakee River. There is approxi- 

2863 mately 6,000 or 8,000 acres. Before the ditch was con- 
structed it was usually wet land, not much grown on 
it but wild hay and some places the water stood on the 
land. The dredged ditch would be about 35 feet in width 
at the top and six or seven feet deep. They were mostly 
constructed during the last six or seven years. 

9864 In Lake and Porter Counties, about 10,000 acres have 
been drained. 

I know a ditch by the name of the R. EK. Davis ditch. 
That ditch starts in the east part of Jasper County and 
runs northwest towards the river about eight miles of 
main ditch and about eight miles of laterals. It drains 

2865 about 1,000 acres. 


620 


I know a ditch called the Akers ditch located just west 
of the Davis ditch. It is about six miles long, 30 feet 
wide at the surface and six or seven feet deep and 
drains about eight sections of land. 

— I know the Smith ditch located west of the Akers ditch. 
It runs south into Jasper and starts about eight miles 
south of Whitfield and then empties into what is known 
as the Hodge ditch, which empties into the river. The 

2866 Smith ditch is about 12 miles long, averages about 395 
feet wide and is six or seven feet deep. 

The Tanner ditch is located east of DeMott in Jasper 
County. It is about eight miles long, 30 feet wide and 
four feet deep, I think; six or seven sections of land 

2867 are drained by this ditch. 

I know the Tyler ditch. 

2868 The Delahanty ditch starts southwest of Wheatfield, 
about three miles and runs north and then northwest and 
empties into the Hanna ditch. It drains about five or six 
sections. 

The Evers ditch rises about two miles south of DeMott 
and empties into the Morris ditch. It is a ditch that 
parallels the river and crosses part of the river and 
empties into the river. It drains six sections. 

The Dreuth ditch is located on the marsh and crosses 
part of the river. I don’t think it drains into any of 
these ditches that had been dug. 

The Moffet ditch rises southwest of Winamac, Indiana, 
and flows nearly to Lake Village and then empties into - 

2869 the river. It drains about 10,000 acres. It is about 18 
miles long, 40 feet wide and seven feet deep. 

All of these ditches have been constructed since I have 
been associated with Mr. Gifford in this work. 

In the Beaver Lake District about 10,000 acres were 
drained by drainage operations there. Since the recla- 

2870 mation work land which was practically worthless or 


621 


seemed to be worthless for farming, has been farmed to 
a great extent. It has not been entirely reclaimed. I 
expect 20 per cent. of the land is tiled and the tiling emp- 
ties into the drainage ditches, the dredged ditches. 
2871 In Lake County there was the Brown and McWilliams 
levee. It extends from a point on the river marsh three 
miles south of Hedron, Indiana, to the state line. It was 
constructed for the purpose of keeping the flood water 
from the Kankakee River running out over the low land. 
The levee is 20 or 25 miles long. The McWilliams levee 
is about 10 miles long. They have the effect of tending 
to raise the water in the Kankakee River a little higher. 

I knew the Kankakee River and the Iroquois River be- 
fore these levees were constructed. The drainage sys- 
tems and construction of levees and other works which 
I have mentioned has caused the water from the Iro- 
quois River every year to run over the rock. It used 

2872 to be in dry seasons that there was but very little water 
that would run over, but now there is a continuous stream 
running down this stream all the time since it has been 
straightened and deepened. Ordinary times it would 
be two feet deep, I guess, and about 40 feet wide at the 
bottom. 

The Kankakee River east and north of Jasper County 
was high. Since the water has been going down there it 
seems to have more current than it did at that time. 
Ordinarily the stage of current is about 24 to 3 miles an 

9873 hour. Before it did not seem to have any current at 
all. And the Iroquois River before these operations 
seemed to have no current; it has got a current now, I 
think of 5 or 6 miles an hour in places. Some places it 
is a little greater. I expect at Renssalaer it goes 8 or 10 
miles an hour. 

Before these drainage districts were constructed the 
water used to lay on the marsh until it evaporated or 


622 


soaked into the soil. Now it practically all goes into the 
ditches, runs off more rapidly than before. Since the 
construction of the drainage work, these streams rise 
more rapidly, especially the Iroquois. There seems to 

2874 be much more water passing, it runs much swifter. 
‘When I first came to the Kankakee River, or in that 
vicinity the river would many times be down below the 
banks, but it has not been since the operation of the 
dredging has been going on above. They carry more 
water than formerly. 


2879 Cross-Exammation by Mr. Butters. 


They apparently carry more water than formerly. The 
water runs much swifter when the water is high and 
the river does not seem to get as low as it did in former 
times. I have not seen it higher in my time. I have 
kept a sort of a record of the water in a way as to the 
height it has been at different times, and at a time be- 
fore the Lake County levees were built the water was 
not as high as it has been since. Now prior to that time 
I don’t know much about it. 

2876 When the Kankakee River is high it goes through 
faster, that is because there is a vast area or territory, 
all of which goes into the Kankakee River and the river 
has its level depending upon the streams that flowed into 
it at that time. The drainage has not tended to decrease 
the level of the water. 

2877 Mr. Gifford’s land is about seven miles from the Iro- 
quois and there was no connection between the land and 

2878 the Iroquois before we put in the ditch at that point. 
The excess water went in a different way, which Mr. Gif- 
ford drained. It went into the Iroquois River. Now the 
entire amount of water would practically go in that 
would fall. The ground takes care of some of it. 

2879 Mr. Gifford’s main ditch has not ceased running, I 


623 


don’t think in five years. It has been running for five 
years or more. I don’t think there would be just as 
much water before that ditch was put in going into the 
Iroquois River as it does now in the case of a spring 
freshet. Now there is a small lateral ditch to carry the 
water into the main ditch and before it lay on the ground 
in these low places where there is little ponds and one 
place and another. It was not a little amount of water, 
it was the whole country. I do not claim that the tile 
ditch makes any more water. 

2880 The land is all practically level; the water won’t run 
off without there is a ditch. Before the tile ditch will 
start to run the land must be saturated with water; the 
water must come into the ditch. It don’t stop running 
when the ground above will be wet. The earth retains 
a certain quantity of moisture. If there is a slope to 
the ground it runs on top of the ground, depending on 
the soil and the slope. 

9881 I have not seen the Kankakee River: except between 
Momence and the Illinois in the last four or five years, 
or examined the flow of the water before 1900 at any 
season of the year. There was water running down 
there before 1900. 


2882 J. W. Kennupy, a witness for the defendant, being 
sworn, testifies as follows: 


Direct Examination by Mr. Chiperfield. 


My name is J. W. Kennedy, I reside at Watseka, Illi- 
nois. J have been a farmer all my life. 

I have been a commissioner of a drainage district 
ealled number two Martindon. I know the location of a 
stream called Pike Creek. I know the drainage opera- 
tions that have been conducted along this creek. The 

2883 ditch is 8 feet deep, 32 feet to 33 feet wide on an average 


624 


and is about 12 miles long. There are between 17 and 
20,000 acres drained by it. Our ditch empties into num- 


3) 


ber 3 drainage and number 3 empties into the Iroquois. 
Number 3 is located about two miles north of our ditch. 
I could not say how long it is. It is a big district. I 
suppose they have got 25 or 30 miles. I cannot say ex- 

2884 actly how much land is drained by that district. I think 
it is as big again as our district, may be more. 

Before this 20,000 acres I speak of was drained the 
land was pretty wet. It stood in places until it dried 
up. It had a natural discharge but it was not good. 
Part of the land was farmed before that. Since the ditch 
was dug it is a great deal better. The water went quicker 
and eventually discharged into the Iroquois River. 

2885 The sub-soil is mainly clay. The water would not soak 
into the clay. 

After the construction of the ditch the water ran off 
a good deal quicker. The water in the Iroquois River 
rises a good deal quicker than it used to in flood times. 
It takes longer to get away. They took out a dam at 
Sugar Island which, I guess, did some good in the Iro- 

2886 quois River. It helped to let the water away a little 
faster. In times of flood the water in the ditch is from 
four to six feet. The ditch enters the Iroquois River 
west of Wilmington. There is dredging all over the 
country there now. In this district we put in something 
like 15 or 20 miles of tile from eight inches up to 30 

2887 inches. It has been universally used throughout the 
districts. 


Cross-Examimation by Mr. O’Conor. 


That opened up the natural drain but the water did 
not all go through in a state of nature. It would not all 
pass out of the land. It is the way the water would flow. 
The drain that is put in is the same system that has been 


625 


going on in different parts of the country. It takes the 

2888 water off a little faster in the spring. The Illinois rises 
quicker than it used to. The water in the Iroquois will 
come up faster in view of the fact the drainage will carry 
the water quicker to the river than it did formerly. The 
eurrent I presume flows faster, I don’t know. I think so. 
I would think so if there was more water there. 

After the spring freshets have been actually drained 
out of the land the river I presume goes back after a 
little while to its old level but not the level that was main- 
tained prior to the construction of these drainage sys- 
tems. 

2889 In the early days the river went almost dry, but it 
never does any more. There is more water in the Iro- 
quois River in the summer months all the time. I could 
not say how much. I haven’t much familiarity with the 
Kankakee at Wilmington or Momence. 


2890 Grant Ricas, a witness for the defendant, being sworn, 
testifies as follows: 


Direct Exammation by Mr. Chiperfield. 


My name is Grant Riggs, I live in Romeo Township, 
Kankakee County; engaged in the business of farming 
and drainage. I have been engaged in the business of 
drainage engineering for 29 years. I have done some 
of the engineering work on the drainage districts. 

There is a stream in our county known as Claussen’s 
Creek, upon which there has been drainage work done. 

2891 The stream was dredged out six years ago for about 
seven miles; there are three branches. Before it was 
dredged the land on either side was wet, so wet they 
eould hardly farm it at all. The water stood on it. The 
seven miles of construction work includes the laterals 


626 


and into the laterals a tiling system has been instituted. 

Claussen’s Creek empties into Spring Creek, which, in 
turn, empties into the Kankakee River. 

There is a creek in that vicinity known as Minnum, 
about four miles from Claussen’s. Drainage operations 

2892 on that creek. It was cleaned out and deepened, lL 
should say, for a distance of four miles. I could not 
tell the acreage that was definitely drained by this im- 
provement. 

I know of drainage operations in the vicinity of Snake 
and Gar Creeks. Gar Creek has been in a drainage sys- 
tem I think for 28 years, but they are working on it yet, 
cleaning it and extending it. It was partly deepened 
and dredged last year. They are working on it yet. 

Snake Creek is one of the drainage districts that is 
west and the other is east of me. Snake Creek was a new 
drainage district. It was dredged out entirely about 

2893 four years ago. I know of the drainage districts drains 
and improvements that have been made in the vicinity 
of Chebanse, I should say 10 to 15,000 acres have been 
affected by it. Since the drainage operations of which 
I speak have been carried on, the excess of water goes 
into the river. Some of it into the lroquois and some of 
it into the Kankakee. It eventually goes into the Kan- 
kakee. It is discharged a great deal quicker in times of 
freshets. | 

2894 The Kankakee and Iroquois Rivers get a good deal 
higher at times than they did before and carry more 
water apparently than they did. The drainage opera- 
tions I speak of are conducted in Kankakee County in 
the southeastern part, on the south side. I own the land 
where the Iroquois empties into the Kankakee and by 
reason of my residence have had an opportunity to ob- 
serve both of those streams. 

Tile is used for drainage purposes more extensively 


627 


during the last six or eight years. Twice as many tile 

used. They cannot get tilers enough there; they are 

advertising for them and there are tiling operations be- 

ing conducted generally throughout the county. The land 

which has been reclaimed during the last eight years is 

used for farm land. Formerly the water stood on it. 
No cross-examination. 


1896 THomas Hatoran, a witness for the defendant, being 
sworn, testifies as follows: 


Direct Examination by Mr, Chiperfeld. 


My name is Thomas Haloran, I live at Ottawa, La 
Salle County. I formerly resided in Ford County. I 
know the township known as Wallace Township in La 
Salle County. The soil in La Salle County is a black 
soil with a clay sub-soil. Up to eight or ten years ago 
it was pretty wet. I have been engaged in the business of 
tiling in La Salle County. During the last twelve years 
2897 I have put in from 20 to 30 miles of tile, mostly through 
Wallace, Waltham and Freedom. Most places I have 
taken up tile and reset them and others have tiled out 
thoroughly. It has made considerable change with ref- 
erence to the wetness of the land. About 30 per cent. 
2898 more is thoroughly drained than ten years ago. The 
land I tiled discharges into the Illinois and Fox Rivers. 
I had similar experience in Ford County, but the last 
ten years of my experience has been confined to La Salle 
2899 and Woodford Counties. I know that tiling operations 
have made some difference in the Fox River, probably 
five per cent. difference. I am still engaged in the work. 
The tiles latterly which is used is much larger, we used 
to use threes and fours and now we use eights and tens. 


628 


Cross-Exanunation by Mr. O’Conor. 


On the land I tiled around here I never ran a tile di- 
rectly into the Fox River. I have noticed a difference 
in the Fox River in the spring. I cannot name a single 
time when I noticed a difference, but using my judgment 
about the drains that I know of, that would make a dif- 

2901 ference. The Fox River in the summer does not have 
a great deal of water in it. Not a great deal of water 
drains into the Fox through the tile in the summer. I 
could not say how many tiles drain into the Fox River. 
I put in some myself. J know there is an awful lot of 
tiling done up there in the north. In the spring the 

2902 high water has been carried off faster than it used to. 
I have no basis upon which I can state the amount of 
water that goes into the Fox River. It appears to me 
that the Fox River is held up higher than it used to be. 
I know that some years ago it was a difficult matter to 

2903 get from the Fox River out into the Illinois; since that 
time the water is higher at times. I could not say whether 
it backs up into the Fox River but the drainage might 

2904 have had some effect in raising it, too. If the water is 
higher it would naturally have to back from the Illinois 
into the Fox River. That is the condition today. 

According to my notion the draining by the farmers 
made a perceptible increase in the flow of the Fox River. 
I would put it at about five per cent., five per cent. more 

2905 water in the last eight or ten years than previous to 
that. I come to the conclusion from the greater drain- 
ing that it drained out than before. They have made 
more thorough draining. I don’t know how much water 
there was in the Fox River. I am figuring there would 
be quite a bit go into it on account of the drain tile. I 
judge it to be five per cent., basing my judgment on the 
amount of draining, the amount of tiling, better tiling. 


629 


To the best of my judgment I saw five per cent. My judg- 

2906 ment is based on the tiling that was put in. There were 
some big ponds, you might call them, and they drained 
several of them. When they were drained off they 
stayed off. Of course, big rains would come and they 
would carry the water to the river naturally. There 
have been some of these drained off quite a number of 
years ago, through tile. They wasn’t much good. I 
took out one ditch up there that came down, a 15-inch tile 
drain at a place called White Horse Pond. I re-set it. 
Something was wrong with the drain and I fixed it up. 
That is one place that I worked on which would affect the 
flow in the Illinois River. I don’t know how much water 
there was in the river that went into it on account of the 
drains. I just figured the same as if I had a big tile in 

2908 there, it would make a difference in the tile. I could 
pretty near tell by figuring the capacity of the tile, the 
only basis I would have to work on. 

I am not in the employ of the Sanitary District. I 
was subpoenaed. I don’t know what they are paying 
me. I don’t know whether they are paying me anything 
or not. 


2909 Grorce W. GRAHAM, a witness for the defendant, being 
sworn, testifies as follows: 


Direct Examination by Mr. Chiperfield. 


My name is George W. Graham, I reside at Streator; 

IT am in the grain business and have been engaged in the 
business of farming. I know about the use of tile in La 
Salle County the last eight or ten years as to whether 

it has been increased. It has been very much. I am 
familiar with the southeastern part of La Salle County, 
2910 Bruce, Otter Creek and Farm Ridge Townships. I think 


2 630 


it has been increased 40 per cent. probably in the last ten 
years. ‘They are all putting in larger tile and a great 
many small tile are being taken out. A great many have 
not taken them out, they are ignoring them and running 
alongside with larger tile. There has been about eight 
carloads of from 12 to 16 inch tile unloaded at Richards 

2911 this fall. That is where I am in the grain business. 
During the last six or eight years the farmers have been 
putting in large tile, from eights up to twelves mostly. 
And the land that is already tiled they are running new 
laterals with four-inch tile and they are putting those 
about ten rods apart. 

There is a big change in the surface of the county in 
my vicinity with reference to water being removed by 
the use of tile in the last eight or ten years. The change 
is for the better by putting in large tile and draining out 
these mud holes. The point of discharge for these tiles 
in Wolf Creek and Otter Creek, and they in turn dis- 
charge into the Vermillion which discharges into the IIli- 
nois River. 


2912 The condition which J have described with reference 
to the use of tile in my portion of the county, is general 
throughout the county. 


Cross-Examniation by Mr. O’Conor. 


Not putting in tile to dry out my land. Put the tile 
down generally about four feet; sometimes you have to 
oo eight or ten feet in order to get over a knoll. They 
put in 4-inch tile as close as three feet to four feet. It is 
a general movement on the part of the farmers to better 
their lands and has been going on for twenty years. 


2913 Re-direct Examination by Mr. Chiperfield. 
Within the last ten years it has very much increased. 


Adjournment to Tuesday, November 26, 1912. 


2914 November 26, 1912, 10:00 a. m. 


Court met pursuant to adjournment. 


Wititiam Powrin, a witness for the defendant, being 
sworn, testifies as follows: 


Direct Examination by Mr. Chiperfield. 


My name is William Powrie. I live in Waukesha, Wis- 
consin, business civil engineer. I have been engaged in 
drainage operations. JI am acquainted with the water- 
shed of the Llinois River as it lies in Wisconsin. JI am 
familiar with drainage operations in and about Racine, 
Waukesha and Walworth Counties in Wisconsin. I have 

2915 been connected with them. 

T know a drainage district called the Wind Lake Drain- 
age District. It is called the Norway and Dover Drain- 
age District now. The Wind Lake Canal starts from 
Muskego Lake, a lake a mile and a quarter north of the 
county line between Waukesha and Racine Counties and 
goes through into the next section south of that which 
is called Wind Lake. Then it flows down where it comes 
into the Fox River at Rochester, Racine County. Then 
it flows around down where it comes into the Fox River 
at Rochester. About three miles out from Rochester 
there is another branch that is about two miles farther 
east, two and a half miles, that runs up along here and 
touches the edge of the watershed and the county line of 
Waukesha County, as shown on the map marked Ex- 
hibit 25. 


632 


2916 Iam familiar with the counties lying down through— 
I take it this is Kenosha. I have conducted drainage all 
through this part of it here, laying west of Racine, clear 
over to Burlington and then west of Burlington to Hk 
Horn and Delevan, Wisconsin, as appears on the map. 

The eanal in connection with this drainage district 
was first commenced in 1890 to be utilized. A Chicago 
Company dug the canal from Rochester to the north end 

2917 of Muskego deeper, about five feet clear through; 
started in ’92 and completed in ’93. I am not positive as 
to the time. The canal came out of Muskego Lake, was 
18 feet on the bottom and the one that went down into 
the Fox River was 25 feet on the bottom. Originally it 
was four feet deep at Wind Lake and they practically 
dug or deepened it five feet more, making nine feet when 
they got through. I think it was completed in 793. 

Before that the surface of the country was covered 

2918 with water to a large extent. There are about 11,000 
acres drained by these operations. The outlet of this 
drainage canal is into the Fox River at Rochester. The 
discharge of this ditch in 1906 was on April 2nd, 217 
cubie feet a second, which would be 13,000 cubic feet a 
minute. When the drainage is completed the total water- 
shed is about 50,000 acres. 

2919 There is an old mill about 3,000 feet ine the point — 
of discharge in the Fox River. It is operated with the 
water that comes from the drainage canal and also from 
the Fox River. The Fox River below the dam meas- 
ures 123 feet wide. 

In 1908 we took gaugings and on May 17th, there was 
83,280 cubic feet a minute going over the dam. The ex- 
treme high water. 

In Racine County there have been drainage operations. 
I know a ditch known as the Dover Town Ditch. It was 
laid out by the town to drain about a thousand acres of 


635 


land, which emptied into Hagle Creek, which also dis- 
2920 charges into the Fox River about two miles below Roch- 
ester. It was constructed in 1906. 
I know a ditch known as the Hoozier Creek District. 
That is a recent district. I don’t know whether it is 
entirely completed or not, but it was in operation. The 
creek ran down there and drained the land in a slipshod 
way and then they organized this district two years ago 
to drain that out. The project will drain about 10,000 
acres altogether. 
There is another drainage district called the Turtle 
2921 Creek Drainage District in Walworth County. The 
watershed contains 20,000 acres. The discharge of the 
Turtle Creek District is estimated at about 245 cubic 
feet a second which would be 14,000 eubic feet a minute. 

I know a district called the East Troy District, but 
had no connection with it. I know of the project although 
I was not connected with it. I know it is a very large 
marsh, but the number of acres I do not know. 

In the Hoozier Creek District I do not know what the 
discharge from the outlet is. I think it is ten feet deep 
at the outlet. 

In a general way prior to the putting in operation of 
these districts, the land was overflowed most of the time. 
Some of it was adjacent to marshes and they were af- 
fected by the water standing back from the marshes, and 
in that Norway Marsh it is almost entirely wet land. 
The rain that well on that country would run off to a 
certain extent before the ditches were constructed and 
the rest of it would lay there and be evaporated by the 
sun. Since the construction of these ditches they are 
planting corn and potatoes in the land along the Norway 
Ditch. The surplus water now escapes and I think it 
g2oes in a more uniform manner than it did before the 
2923 drainage. If the ground is frozen now I think it will 


bo 


Os 


bo 
bo 


634 


discharge faster; if the ground is not frozen, not sat- 
urated it will discharge slower because with the drainage 
the sub-soil is drained down, we will say, about two feet 
and that permits taking up quite a rainfall before you 
have any run off. In times of heavy rains, of course, it 
increases the run-off very much. The last two or three 
seasons with reference to rainfall in Wisconsin were 
wet springs and summers and from June on were very 
dry until perhaps along in September. This year it 
was wet during all the spring and then dry. During 
2924 the times of rains in the early parts of the year, the 
ditches are full of water and they flow into the Fox River. 
I have seen the Fox River and observed it. I have 
observed a more uniform stage of water down there. 
The Fox River is high the year around and certainly 
carries more water since these drainage operations. With 
reference to its standing higher, the seasons have been 
so variable there that you would hav to fix your ques- 
tion to a particular time. Now, a year ago, it was so 
dry there was very little water flowing there during 
the year, a year ago in the late summer. But in the 
1925 early spring the water was quite high, much higher than 
usual. I think the water is higher in extreme high water 
due to more opportunity to run off. Laterals have been 
constructed over all of these districts. 
2926 I think there will be 50 miles of laterals, something 
like that in the Norway and Dover District all told. 
There was a ditch dug out of Camp Lake in 1906 which 
2927 was closed in 1910. I never estimated the amount of 
discharge but it had about a ten-foot fall in two miles 
and it measured nine feet wide on top. 


Cross-Examination by Mr. O’Conor. 


The first district I spoke of was originally completed 
in 1890 and there were afterwards improvements added 


635 


about 1893. The object was to take the water out of the 
land. 

I said if it was frozen the water would run off faster 

2928 than it would before, if the ground was frozen. I have 
seen an inch of rainfall on the ground and no run-off 
when it was real dry. 

Summer before last the Fox River was very dry, the 
summer of 1911. I did not see it in September. I never 
knew it to be dry down there. I said during the dry 

2929 times not much run-off at that time. In the summer of 
1911, all of the rivers were low, and the high land ad- 
joining the marsh was effected. It prevented the drain- 
age of the high land. 


The high land around Muskoge Lake is very little 
higher than the marsh or lake level; until they drained it 
down they couldn’t drain the land. 


The water level of the land would be some higher, of 
course, than the water level of the water surrounding the 
2930 land. It depends on the character of the soil. You 
ean run back from the lake a couple of miles and the 
eround might be three or four feet higher and still be 
wet. If you would want to put in a ditch that would 
lower the water in that land, say three feet, you could 
not do it if the water was up in the lake. The higher the 
water stands around the land, the higher the water level 
is going to be in the land. The farther back you go from 
9931 the water level the less drainage there would be and 
the farther back you go the higher the water would be 
standing on the land itself. 


Re-direct Examination by Mr. Chiperfield. 


In a porous and loose soil the water would not stand 
9932 very high in that kind of soil. When the soil is loose 
and porous of course the water is more nearly uniform. 


636 


I am talking about the water in the land itself, that is 
naturally found there. 
The Rochester Dam on the Fox River is 250 feet wide. 
Just below I measured it at 128. I cannot tell exactly 
2035 how far above Rochester the river rises. The head 
waters are between Waukesha and Washington Counties, 
something like 30 miles. I think about 1,000 square miles 
of watershed of the Fox River lies in Wisconsin. 


Re-cross Examination by Mr. O’Conor. 


It always lay there, probably will. 

2934 I took the gauge readings because we contemplated 
removing the dam in our new improvements. We ran 
up against so much trouble and the Supreme Court had 
decided that we could not remove the dam in some other 
cases, so we wanted to devise some means of going on 
with our undertaking, and we took a set of gauge read- 
ings to determine the flow and to give us an idea how 
large to construct our channel and how much to enlarge 
it; 1908, I took those gauge readings. The other meas- 
urements I made by measuring the velocity of the water 
in the channel and computing the discharge by the ve- 
locity. 

The Dover Ditch was a town ditch and drained about 
1,000 acres. That is my estimate of the land at the time 

2039 we did the work. I did the work. No acreage given 

that is based upon records that I saw. 


J. R. Kine, a witness called by defendant, being sworn, 
testifies as follows: 
Direct Examination by Mr. Chiperfield. 


My name is J. R. King, I reside in Winchester, Scott 
County, Illinois. J am county clerk of the county. There 


2937 


2938 


2939 


637 


are drainage districts located there. I have been over 
them. There is one called the Big Swan, Hill View, 
Mauvaise Terre, Scott County, and one called Coon Rod. 
I can point to the districts which are shown on Exhibit 
26. ‘There are three of them marked on the exhibit, 
Scott County, Big Swan and Hill View. They are in 
Scott County right below Naples. The North District 
in that territory is Mauvaise Terre. It is about six or 
seven miles south of the north line of Scott County. 

- The next district is Big Swan. 

The next district is Hill View. 

The next district is North Star. 

In Mauvaise Terre, there are 1,874 acres. 

In the Scott County District there are 9,467 acres. 

In the Hill View there are 14,350 acres. 

In the Coon Rod District nearly 2,000 acres. 

The river side of these districts is in some places a 
quarter of a mile from the river, other places probably 
half a mile from the river. Prior to their construction 
the Illinois River overflowed all these districts. They 
have all been constructed between 1903 and 1907. Before 
their construction the Illinois River was at high water 
from four to six miles wide. The banks of some of these 
levees are 20 feet, some 25. In times of high water at 


2940 the present time the Lllinois River is probably a mile 


wide. 3 

Across the river from.these districts there are high 
bluffs, 20 to 60 feet high. The plat so far as Scott 
County is concerned, correctly outlines the location of 
these districts, all except the Hill View District, a part 
of which is in Seott County. 


Cross-Examination by Mr. O’Conor. 


IT have been county clerk ten years. I have been over 


9941 this ground myself at different times. The Big Swan 


638 


Drainage District I have been over. I have been over 
the upper part of the Hill View. 
As I remember the Big Swan was constructed in 1904. 
I had no connection with it except officially. 
In the Hill View District there were 14,000 acres. I 
got those figures, a part of them, off the record and a 
part of them from the clerk of Green County. They 
2942 are not my own figures. The other figures are copied 
off the assessment roll of the Drainage District in my 
office. [I had nothing to do with the operations and deter- 
mining the acreage. I copied them from my record. 
Winchester is 30 miles south of Beardstown, ten miles 
from the Ulinois River. I don’t know how far Winches- 
2943 ter is from La Salle. I would say Winchester is 70 
miles from the mouth of the Illinois River. I don’t know 
how far it is from the Campsville Dam or the Henry Dam. 
1 don’t know how far Winchester is from Peoria. 


2944 Jacop A. Harmon, a witness for the defendant, being 
sworn, testifies as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Jacob A. Harmon, I reside in Peoria. I 
am a civil engineer largely devoted to drainage. I am 
familiar with the location of the drainage districts along 
the Illinois River. 

Starting at Hennepin the locations and names of the 
various drainage districts that are found, proceeding 
down the river, are as follows: 

Near Hennepin there is a district, the official title of 
which I don’t know. I know it as the Hennepin District. 

Next below is the Partridge District, opposite Chilli- 
cothe. 

Opposite Peoria is the East Peoria District. 

Opposite Pekin is the Pekin and LaMarsh District. 


639 


Below Pekin in Tazewell County on the east and south 
side of the river is the Spring Lake District. 

Across from the river and the Spring Lake District is 
the Banner District. 

At Havanna is the Lacey District. 

Immediately below the Lacey District is the Langilier 
District. 

Just below the Lacey District is a small district back 
from the river front, the name of which I do not know. 

Opposite Beardstown is the Coal Creek District. 

Immediately below the Coal Creek District is the Crane 
Creek District. 

Above Beardstown on the north side of the river is a 
new district, the name of which I do not know. 

Opposite Meridosia is the McGee Creek District. 

A little below Meridosia is the Meridosia District. 

2946 Beginning at Naples on the east side of the river and 
extending within 8 or 10 miles of the mouth are a series 
of districts which adjoin each other. The first one of 
these districts beginning at Naples is the Scott County 
District; the next is the Big Swan, then the Hill View, 
then the Hartwell, then the Keetch, then the Eldred and 
then the Nutwood District. That carries you down to 
the Mississippi River. 

2947 The total area of acreage drained by these districts 
is approximately 100,000 acres. The levees are built 
from 200 to 400 feet back from the river, some places a 
little closer. 

I have been connected with about half of these districts 

2948 in an engineering capacity. Most of these districts 
have been constructed within the last ten years, since 
1902 high waters, but some of them were constructed 
prior to that time and have been re-constructed since. 
All but one of them, I think, that were constructed before 
1902, broke at that flood. The levees are. about 12 feet 
in height above the natural bank. 


640 


The river varies in width from about three miles at 
Peoria to about four miles at Havanna in high water. 
2949 At Beardstown three miles. Meridosia a little wider, 
three or four miles. The average is the same from 
Beardstown down. There is some local variation. 


The map marked Defendant’s Exhibit 26, approxi- 
mately shows the location of the drainage districts which 
I have spoken of and in a way the locations on the plat 
are substantially correct. The distance shown on the 
plat is substantially correct, according to my own obser- 
vation and knowledge of the location of the county lines. 
2950 Mr. Cureerrietp: I want to offer this plat in evidence 
and that concludes the examination of Mr. Harmon on 
this subject. 
2951 Which said plat was marked Exhibit ‘‘26’’, and is in 
the words and figures following, to-wit: 










QGueAtAY Ge 


- 4 Fe rs 


1, V SULEY 


ands S$ RIVER 
"SHOWING 





7 
J 
= 


J STARS HALL CO 





















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i 
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ad i_-" 
plecer i a —- 
” A OMe: f peers. wee 





o Jf Jour he : 


f 
yw WooprorD Co. 


a 


Seer Fore 
st, 750 “Fe. 


las 


Puezewsliz Ca. 


a® 


open mtn SF ~ 


. a P : veo, | ‘ is : 
. ee ’, 
“Yors6an Co & ' seed 


ee 4 PS 





A. 


' nat 





Startwell Lrsr / 
fReoe We , 


Grttenve Co. ; 5 
Cocer es 


“ae. , 4 soece 
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aed oY 
. Veoeo He. : 





MVerweed List 
S7ODo He 






ae a Fee, 
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7} » rer 
“+ Ptrasisapp Phver 
4 : 








ob 
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La eM Le Sth iat 
< 2 = ce Lid » ¢ 


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Seti Bie 


~ os neeaelatp sing eh 9 eh ete Se 
a Lae a% +4 











641 


The figures on here ‘‘210’’? mean 210 miles from the 
Mississippi River and all the way down that is the same. 
They represent the distances by 10-mile intervals. 


Winchester is in Scott County, about opposite the line 
between the Scott County District and the Big Swan 
District. That would be about 60 miles from the Mis- 
Sissippl. 


2953 Louris 8. AtrEeR, a witness for the defendant, being 
sworn, testifies as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Louis 8. Alter. I reside near Goodland, 
Jasper County, Indiana. I am a surveyor and civil engi- 
neer. I am in a general way familiar with the drainage 
operations conducted in my section of the country. The 
drainage along the Kankakee consists mostly of large 
open ditches generally constructed with a dredge. We 

2954 call them dredged ditches. There is probably 100 square 
miles of Jasper County drained by dredged ditches and 
probably the same in Newton County. I knew the coun- 
try before these operations were commenced. In Jasper 
and Newton Counties before the drainage operations, it 
was a level flat country covered with water from a few 
inches up to 24 or 3 feet deep. On these marshes there 
was growing grasses and rushes, cane and water-docks. 

I also have some acquaintance with St. Joe County. 
There are extensive operations conducted in that county. 
There was as much land drained as in Jasper and Newton 
Counties. 

2955 'The surface of the land before these drainage opera- 
tions were commenced was mostly swampy, either tam- 
erack or open swamps, some cranberry swamps huckle- 
berry swamps, covered that way from a few inches up 
to two or three feet deep. 


642 


Before the drainage operations were completed the 
water of these three counties would in dry times, a large 
portion of it, run off, but in wet times it would lay there 
until it would evaporate or be soaked up. St. Joe County 
encloses the head waters of the Kankakee River, is nearly 
square and the west half and the south part is drained 
by the Kankakee and Yellow River's, the Yellow River be- 
ing a tributary of the Kankakee. 

2956 Newton County is about 14 miles wide, extends from 
the Kankakee River south about 28 miles in a straight 
line. 

Jasper County joins it on the east and extends from 
the Kankakee River. It is south of Newton County. It 
is 36 miles long and 18 miles wide. 

I was very well acquainted with the Kankakee River 
but not so very well with the Yellow River. The Kan- 
kakee River as it existed before any improvement of the 
stream was made consisted of a rather narrow shallow 
channel with a wide marsh on one or both sides of it, 
generally rather narrow on one side of the channel, and 
very wide, extending back three or four, or sometimes 
five miles on the other side. The channel is shallow and 
very crooked and at places the trees would fall in and 

2957 would reach almost across the channel. The channel 
was from 60 to 140 feet wide. The land which I speak 
of as being swampy before these ditches were construct- 
ed, since they were constructed the water has been most- 
ly removed and a large portion of those marshes have 
been drained sufficiently for farm lands. The water 
which falls on these lands in the shape of rain or snow 
now goes off a great deal faster and more of it is re- 
moved from the land. 

Tile is pretty extensively used now, but before the time 
of the improvements very little tile was used and that 
was on the high ground only. 


643 


2958 To some extent since the improvements I have ob- 
served the Kankakee River and compared its condition 
before drainage “operations and after it was put into 
effect. The Kankakee River probably reaches a little 
higher stage of water a little quicker than it did before. 
To the best of my observation there is considerably 
more water passes down a given point near the state line 
than there was before. 

In times of excessive rainfall the ditches, so far as 
they have an outlet, flow rapidly and carry the water 

2959 off much more quickly than they did before. Before 
the drainage operations the water simply flowed over 
the land to the river. There were old ditches that were 
constructed on the higher ground and that simply ran 
out and struck the marsh, ran out the ditch on the ground ~ 
and quit. It discharged into the marshes for a mile or 
two miles to three miles away from the channel of the 
river. That water could get to the river by simply soak- 
ing through the grass and over the country, that is the 
only way it had of getting there. 

Most of the river improvements and the drainage op- 
erations have been constructed within the last six or 
eight years. I have lived in that vicinity 61 years. 

2960 ‘The tile takes more water off the country, but it dis- 
tributes it out a little longer. It lessens the flood of 
water in the smaller streams, but has a tendency to in- 
crease the flood of water in the larger streams. For in- 
stance, the creek that goes through my place formerly 
would get high and remain at a high stage of water for 
three or four hours and then fall rapidly. Now, it doesn’t 
get so high, but it maintains that height for four or five 
times as long, and that has a tendency in the larger 
streams where it empties, of raising them up higher con- 
tinuously at a moderately high stage for a longer time. ; 
There certainly has been more water discharged from 


644 


the surface of the country than was formerly carried 
off, since the construction of this work. 


2961 I have been engaged in the business of- engineering 
and surveying for 34 years and have conducted surveys 
in this country of which I have spoken, for 33 years. So 
far as this improvement is concerned, I mean the entire 
watershed of the Kankakee River is affected. I do not 
know what its area is, but practically the entire water- 

2962 shed has come under my observation. 


Similar drainage operations as those which I have de- 
scribed in St. Joe, Newton and Jasper Counties have 
been carried on over the entire watershed and that con- 
dition is substantially true of all the watershed of the 
Kankakee in Indiana. 


Cross-Examimation by Mr. O’Conor. 


The watershed that I refer to has always been the 
watershed of the Kankakee River and always will be so 
2963 far as I know. 


Prior to the improvement mostly timber was growing 
in the marshes. The grass that grew where the water 
was shallow, near the edge of the water. In dry times 

2964 there was no water and it gave the grass a chance to 
crow. For agricultural purposes the land was practic- 
ally valueless before the installation of the drainage, 
but they used it for hay. They cultivated some of the 

2965 high land. I don’t know what proportion but there was 
considerable. They cultivated none of the land that was 
very wet. 

IT have only carried my observations of the Kankakee 
River to the Indiana line. I did some work at Momence 
when they were taking out the rock there. 


645 


2966 W. Ki. Mituer, a witness for the defendant, being sworn, 
testified as follows: 


Direct Examination by Mr. Chiperfield. 


My name is W. E. Miller, I reside at Libertyville, Ili- 
nois. [I am a farmer located in Lake County. I have to 
do with the organization of drainage districts in Lake 
County. I have lived there since 1871. I know every foot 
of Lake County. 

The drainage districts that have been organized in 

2967 Lake County in the last eight or ten years are the Ver- 
non District, Vernon No. 2, Seavey Slough District, Big 
Sag Ditch. In the Vernon District there are about 8,000 
acres. There is only six miles of ditch; the ditch is 23 
feet wide on top, and 6 feet deep. The Vernon District 
hes along the east side of the Desplaines River. 

2968 The Seavey Slough commences about a mile south of 
the Village of Libertyville, and comes down into Indian 
Creek. 

Vernon District No. 2 commences south of Indian 
Creek and runs down into this little creek shown on the 
map. 

The Big Sag lays right up in there. 

Libertyville is about 15 miles from the north line of 
Illinois. The Big Sag District is about 10 miles from 
the state line. The district to the south is 36 miles south 
of the state line, and about eight miles from Lake Michi- 

2969 gan. The nearest one to Lake Michigan is about 14 
miles. 

The soil of the Vernon District before any drainage 
was done was a black mucky soil. There was water stand- 
ing on it in times of heavy rains all the way from three to 
four feet deep. As a result of these drainage operations 
that is changed, it is now in a high state of cultivation. 


646 


The outlet of the Vernon District discharges into the 
Desplaines River. There are tile laterals connected with 
the main ditch. There were no tiles used in this slough 


2970 before then. They are using from 6 to 8-inch tile. 


Vernon District No. 2 drains about 9,000 acres, I mean 
the ditch, the watershed would be about 9,000 acres into 
that ditch from watershed to watershed. It goes through 
a low flat swampy country, the same kind of surface as 
deseribed in the Vernon District. It is tillable land at 
the present time. It discharges into the Desplaines River 
through a little creek. 


2971 The Seavey District drains about 12,000 acres. There 


is around five miles of ditch, which is 23 feet wide and 7 
feet deep. On two farms in the Seavey Slough District 
there are 12 miles of tile. J should say in the whole ter- 
ritory there is in the whole neighborhood of 25 miles of 
tile, 6, 8 and 10-inch tile. The Seavey Slough District 
discharges into Indian Creek and into the Desplaines 

River. 


2972 The Big Sag District drains about 20,000 acres. There 


are seven miles of main ditch and there are tile laterals. 
The ditch is 6 feet wide and 7 or 8 feet deep. It dis- 
charges into the Fox River. 

There are drainage districts opening in Fox and Long 
Lakes. It is about 4 miles; they dug a channel there 
about 30 feet wide and 6 or 7 feet deep. There is in the 


2973 neighborhood of 25 miles of dredged ditches put in 


through the swamps around Long Lake and Fox Lake. 
Before these ditch laterals were put in it was a regular 
swamp, water on it the year around, practically. A per- 
son could not walk on it except in some places. I should 
say 15 to 20,000 acres were drained by those operations. 


2974 The water from the drainage eventually gets into the 


Fox River. 
The head waters of the Desplaines originate in Keno- 


647 


sha County, a very little bit runs up into the edge of Mc- 
Henry County, but not much. 


There was a big marsh located in and about the head 
waters of the Desplaines River. I could not say how 
many acres there are init. I should say there was in the 
neighborhood of 6 or 7 square miles. There is more than 
seven sections of land in there. There was drainage op- 
erations carried along the head waters of the Desplaines 
by what is called plow ditches. By that I mean a big 

2975 plow that is drawn by a capstan which digs a ditch 6 
feet wide and 4 feet deep and rolls the dirt out and throws 
it out about 3 or 4 feet from the bank of the ditch. It is 
ealled a bull plow ditch. In Lake County we have about 
150 miles of these ditches. They empty into the Des- 
plaines River and several of them into small lakes which 
drain into either the Desplaines or the Fox River. 


I know the eastern edge of McHenry County. There 

are swamps located there which have been drained into 
2976 the Fox River. The biggest part of them were drained 
by these plow ditches. There is one dredged ditch put 

in there about nine or ten years ago. All of these opera- 
tions have been put into effect during the last ten years. 


I know the Desplaines River and the Fox River since 
the fall of ’71. Before the construction of these opera- 
tions the Fox River in the northern portion of Lake 
County was real high and would keep the water back in 
the sloughs until a time when the dam at McHenry went 
out, and also down below; 1t was about six miles farther 
down, another dam used for a grist mill. Those old dams 
went out and then the lake got down so low that they 
went to McHenry and put in another dam just south of 
McHenry village, about three feet high. That raised the 
water about a foot or foot and a half in Fox Lake. 


2977 In its original condition the width of the river was 


648 


about 200 or maybe 300 feet wide. In extreme dry times 
before these drainage operations it would be very low. 

The Desplaines River as a rule is a low sluggish river 
in our county. During times I have stepped across the 
channel and not got my feet wet walking across. In 
places in dry times it would be two rods in deep holes and 
then in other places it would not be three feet. Since the 
drainage operations have been completed, the Desplaines 
River in its lowest places has water at least two feet 
deep, in the shallowest places in the river since that time, 
and all the way from three to four or five rods across. 
The Desplaines River carries more water since. The Fox 
River carries more water since. The water from the 
sloughs and surrounding country gets into the rivers 
quicker and faster than it did before. The rain falling 
on the country is carried off by the tiles to the ditches 
and by the ditches to the river. 

2979 Ihave some pictures which I now show you. The first 
picture which is marked No. 1 with the name H. L. Hay- 
mer, I recognize, and the place that the photograph pur- 
ports to be a reproduction of. That picture was taken 
in Vernon District No. 1, after a rain in the spring and 
shows the condition of the lands. The photograph truly, 

2980 faithfully and correctly reproduces the scene which then 
and there existed. The water that is displayed in the 
picture lies along the land on the line of that ditch we 
put in there and the depth of the water in the picture is 
in the neighborhood of a foot or a foot and a half. The 
strip of land that is seen is about thirty to forty rods 

2981 wide and about ninety rods long. The date the picture 
was taken is April 30, 1900. I was there when the pic- 
ture was taken and saw it taken. That is the things re- 
produced by the picture. It truly, accurately and cor- 
rectly portrays the conditions that then and there ex- 
isted as known to me. 


649 


Mr. Curprerrietp: I desire to offer this picture in evi- 
dence as illustrative of the scene which there existed. 
Objection by plaintiff; objection overruled. 
Whereupon said photograph was received in evidence 
by the court and marked Exhibit 27. 

2982 I recognize the picture which is marked No. 2, H. L. 
Haymer. I was there when that picture was taken and 
am familiar with the scene which that picture pretends to 
reproduce. The picture truly, accurately and correctly 
reproduces the scene which there existed. The depth of 
the water shown in that picture is from a foot to three 
feet, and the place that is purported to be reproduced by 
the picture is thirty rods wide and it narrows down. The 
picture is a true representation of the scene that existed 
on that day and at the time it was taken. 


Mr. CuHIPERFIELD: I desire to offer No. 2. 


Mr. O’Conor: Same objection. 
2983-4 Objection overruled. 


650 


Whereupon said photographs marked Exhibits 27 and 
28, respectively, are admitted in evidence, and are as 
follows: 


No.Z 








No.2, 


27 Vernon district. 





5 Bubs ae 


28 Vernon district. 











eo 


As prieiiy 


i. 
S Ew eS, 
‘sath eS See 


“ 


~ 


> 
5S Se Se 
Sis 
y es 
¢ 








7 











PCL ADOT ITI 





bol 


2985 Now the picture which is marked No. 3, H. L. Haymer, 
I know. It was taken April 30, 1909, on the same day. 
I was present at the time the picture was taken. The 
picture truly, faithfully, accurately and correctly repro- 
duces the scene which there existed. The water portrayed 
in the picture is a foot or a foot and a half deep. The 
scene represented is a strip of water about twenty rods 
wide. It is a true, accurate and correct representation 
of the thing as it then existed at that time. 


Mr. CurperFretp: I desire to offer the picture in evi- 
dence. 
Mr. O’Conor: Same objection. 
Objection overruled. 

2986 The picture marked No. 4 was taken on the same day, 
April 30, 1909. It is a true, accurate and correct re- 
production of the scene there sought to be presented, 
which was presented at the time. I was present. The 
water that is shown there is a part of this picture—we 
took a boat and went out and measured the water and it 
was four feet deep. This picture does not show the 
width of the water clear across. As produced here it 
is about 100 rods wide. The scene is in the Seavey Slough 
District. The other three pictures are in the Vernon Dis- 
trict. We took the pictures of both districts on the same 
day. The water shown in these pictures is being carried 
off through these ditches. The condition of overflow 
shown in the Vernon District extended over the entire 

2987 length of it. The condition which is reproduced in No. 
4, there was about four miles of it. 


2988-89 Mr. Curperrietp: I desire to offer the picture in 
evidence. 
Mr. O’Conor: Same objection. 
Objection overruled. 





"Which said photographs, marked Exhibi 
respectively, are in words and figures follc 


p * b 
Seeker) | ee es 


7 
a 
i 
- 
r 
. 
‘ 
2 
’ 
: 
- > Fs 
. 

a 
a) 

? ? ? > \ 

x - 
- 
. 
* 
> + 





No.4. 





30 Seavey slough district. 


29 Vernon district. 











653 


2990 Cross-Examination by Mr. O’Conor. 


The photographs show unusual conditions in the 
spring, but there was water in that marsh all the year 
2991 around more or less. The natural water-shed was in 
the same direction that the water is now carried in the 
ditches. 


A. C. Morrtson, a witness for the defendant, being sworn, 
testified as follows: 


Direct Exanunation by Mr. Chiperfield. 


. My name is A. C. Morrison, I reside in Martinton, 
2992 Iroquois County, Illinois. I am a drainage contractor. 
Martinton is located in the north center of Iroquois 
County. It is almost due north of Watseka. It is south 
2993 and some east of Kankakee and almost due west of 
Rensselaer and is 6 miles from the Iroquois River. 

The principal smaller streams located closer to us are 
the Beaver Creek and Pike Creek. Beaver Creek starts 
over in Indiana and runs in a westerly direction and 
empties into the Iroquois River. 

2994 J have been a drainage commissioner for 22 years of 
Martinton Drainage District No. 3. There is 60,000 acres 
drained by it. There are 36 miles of open ditches in No. 
3. They are scraper and dredge ditches. From these 

2995 ditches there are laterals. The main ditch runs 30 feet 
wide and 7 feet deep and empties into the Iroquois River 
direct. In Martinton No. 1 there are 6,000 acres, 6 miles 
in ditches, and it empties into the Iroquois River. Its 
ditches are 20 feet wide and 5.5 feet deep. 

2996 Martinton No. 2 drains 20,000 acres, 12 miles of 
ditches 30 feet wide and 8 feet deep and empties into the 
Iroquois River. 


654 


No. 3 has 23,000 acres in it, 36 miles of ditches, 30 feet 
wide, 7 feet deep and empties into the Iroquois River. 

No. 4 has 3,500 acres, 6 miles of ditches, 25 feet wide 
and 5 feet deep, and empties into the Iroquois River. 

Papineau & Martinton No. 1, 6,000 acres, 5 miles of 
ditches, 25 feet wide and 5 feet deep, and empties into 
the Iroquois River. 

The Big Beaver has 8,000 acres, 8 miles of ditches, 30 
feet wide and 6 feet deep and empties into the Iroquois 
River. 

Little Beaver has 4 miles of ditches, 6,000 acres, the 
ditches are 25 feet wide and 25 feet deep, and empties 
into Beaver Creek. 

Beaver No. 1 has 6,000 acres, 12 miles of ditches, 30 
feet wide and 5.5 feet deep and empties into Martinton 
No. 3. 

2997 Beaver No. 2 has 5,500 acres, 18 miles of ditches 30 
feet wide and 6 feet deep and empties into Martinton 
No. 3. 

Wichard Drainage District, 8,000 acres, 6 miles of 
ditches, 25 feet wide and 6 feet deep, and empties into 
the Kankakee River. 

Concord & Sheldon, 10,000 acres, 9 miles of ditches 30 
feet wide and 7 feet deep and empties into the Iroquois 
River. | 

Blackstone Drainage District has 7,000 acres, 4 miles 
of ditches 25 feet wide and 6 feet deep and empties into 
the Iroquois River. 


Middleport & Martinton has 12,000 acres, 10 miles of 
ditches 25 feet wide and 6 feet deep and empties into the 
Iroquois River. 

Crescent & Iroquois has 8,000 acres, 5 miles of ditches 
25 feet wide and 6 feet deep, and empties into Spring 
Creek, which flows into the Iroquois River. 


695 


Iroquois & Crescent No. 2 has 4,000 acres, 8 miles of 
ditches 30 feet wide and 5.5 feet deep, and empties into 
Sugar Creek. 

LaHogue Drainage District has 17,000 acres, 22 miles 
of ditches 28 feet wide and 5.5 feet deep and empties into 
the Vermillion River. 

2998 Oliver Drainage District in Livingston County has 12,- 
000 acres, 14 miles of ditches 25 feet wide and 7 feet 
deep and empties into the Vermillion. 

Danforth & Ashkum Drainage District has 22,000 acres, 
20 miles of ditches 30 feet wide and 6 feet deep and emp- 
ties into the Iroquois River. 

Ashkum No. 1 has 10,000 acres, 5 miles of ditches 22 
feet wide and 5 feet deep, and empties into the Iroquois 
River. 

Possum Trot Drainage District has 17,000 acres, 12 
miles of ditches 25 feet wide and 7 feet deep and empties 
into Sugar Creek, which empties into the Iroquois River. 

Artesia No. 4 has 6,000 acres, 7 miles of ditches 25 feet 
wide and 5.5 feet deep, and empties into Spring Creek, 
which empties into the Iroquois River. 

Milk’s Grove Drainage District has 6,000 acres, 20 
miles of ditches 30 feet wide and 10 feet deep on the 
average, and empties into Langham’s Creek, which emp- 
ties into the Iroquois River. 

Crescent Drainage District No. 1 ne 4,000 acres, 95 
miles of ditches 30 feet wide and 10 feet deep and empties 
into Spring Creek. 

2999 Ash Grove Mutual has 8,000 acres, 7 miles of ditches 
25 feet wide and 7 feet deep and empties into Sugar 
Creek, which empties into the Iroquois River. 

Middleport No. 1 has 8,000 acres, 7 miles of ditches 
25 feet wide and 5 feet deep and empties into the Iroquois 
River. 

Milford & Ash Grove, 12,000 acres, 6 miles of ditches 


696 


20 feet wide and 6 feet deep, and empties into Sugar 
Creek, 

That makes a total of 255,000 acres drawed and a to- 
tal length of ditches of 274 miles. 

3000 I am personally familiar with the land composing the 
drainage districts, a list of which I have given. They 
have all been constructed in the last ten or eleven years. 
Before the construction the surface of the land in the 
districts was low and wet. They were only farming the 

3001 highest lands. The water would just simply stand in 
the low parts at various depths, some 5 or even 6 feet in 
depth. Since the construction of these districts the sur- 
face of the land is all farmed. It is carried off in tile 
through these drainage districts. There has been thou- 
sands of miles of tile put in since the construction in these 
districts. Very little tile before the districts were con- 
structed. I think there are very close to 300,000 acres 

3002 drained by the 57 drainage districts in Iroquois County. 
All of these districts discharge into the Iroquois River. 

Before the completion of these districts the Iroquois 
River was fordable at low water times at at least three 
different places in our county. 

3003 The sub-soil under most of these lands varies from 
lake sand, in some places, to joint clay, blue clay, and 
hard pan. Where there is hard pan and blue clay the 
water does not sink into the ground, but to some extent 
it ean sink through the joint clay. Where there is blue 
clay and hard pan it stays on top. 

Since the construction of these districts we have been 
unable to ford the Iroquois River. The water is higher 

3004 I think at least two feet. The river carries more water 
and there is always more current in it. It is a faster 
stream than it used to be. 

I know something about the drainage operations in 
Kankakee County. From Kankakee up the river there 


657 


has been quite a number of districts constructed during 
the last eight or ten years. They drain into the Kanka- 
kee. Before the ditches were constructed that was a big 
swamp, probably a hundred thousand acres. There was 
water standing in the swamp nearly all the year through. 

3005 It was not so awful deep, 1t was more of a level low 
piece of ground. There were no farming operations in 
the swamps. At the edge of the swamps they did a little 
farming. Improvements have been made in the last ten 
years, since which the land that I speak of is cultivated, 
most of it. Some of it isn’t good enough to cultivate. 
The water now leaves the surface more rapidly than it 
used to. 

3006 The tiles are running the year through. The ditches 
are running. 

I believe I have some pictures of the typical changes 
in the condition of the country before and after the drain- 
age, | 

(Photographs handed to the reporter and marked Eix- 
hibits 31, 32, 33 and 34 for identification. ) 

3007 Exhibit 31 is an old ditch, where the dredgers have 
been run up there. It shows the deepening of an old 
ditch. That was done in Martinton No. 3, I think, about 
four years ago, along in August, and it correctly por- 
trays the conditions that are presented, to my personal 
knowledge. 

Hxhibit 32 is a photograph of the same locality. I was 
there at the time it was taken, but the conditions are 
changed from those shown in the other exhibit. It truly, 

3008 correctly, accurately portrays the scene there present- 
ed. The body of water in Exhibit 32 is from eight to 
ten feet deep and from 32 to 34 feet wide; 32 was taken 
a couple or three months after 31. It was before the 
completion of the whole ditch, but at that point it had 

3009 been completed. 


698 


Mr. Curperrietp: I desire, if your Honor please, to 
offer in evidence Exhibits 31 and 32. 
Objection by plaintiff; objection overruled. 


Which said documents were thereupon marked Defend- 
ant’s Exhibits 31 and 32, respectively, and are in words 
and figures as follows: 

3010 Exhibit 31. 


3011 Exhibit 32. 


‘pe bpespas —ie\n\ suyuow Bird (oie SOA meh @, IWNS ae PAO AOTN Wor a ll ss YAP pebpos el Te 


~ 
ve 





659 ‘ 


3012 Exhibit 33 is the same ditch only in a different position 
and represents another section of the field, truly, cor- 
rectly and accurately. JI was present at the time it was 
taken. 


Exhibit 34 is the same ditch, not exactly the same 
point. It is farther down the stream, half a mile far- 
ther. The water shown in the picture is about 10 feet 

3013 deep. The width of the ditch is between 30 and 40 feet 
and is one of the ditches I testified about that drains that 
district. It is Martinton Number 3, and was made the 
same time in September and correctly shows the scene 
there presented. 

Mr. CurprerFretp: I desire to offer Exhibits 33 and 34 
in evidence. 

Objection by plaintiff; objection overruled. 


660 


Thereupon said documents were so marked and are in 
the words and figures following: 
3014 Exhibits 33 and 34. 





‘pebpeipei— 4ayn) Sujyow jorerss CE SO PWOG He ‘Ey Plsysi 


— = 


UO\UIOYW 4 Yop pebpoaicy c¢ 


rs 












661 


3015 I have lived in that neighborhood about 37 years but 
during the 24 or 25 years I have been a drainage con- 
tractor and have constructed 30 per cent. of the work in 
the districts I have testified to. 


I am acquainted with the Oliver Ditch in Livingston 
County. Itis a large ditch that was constructed to carry 
water from the south side of the T. P. & W. Railroad. 
It lies south of Chatsworth and runs in a northerly and 
westerly direction into the Vermillion River. It drains 

3016 about 10,000 or 12,000 acres. Was constructed about 
seven years ago. After heavy rains on these lands it 
goes into the ditches and then into the rea eans and of 
course to the river. 


Cross-Examimation by Mr. O’Conor. 


The water I speak of in Iroquois County is carried 
along in the natural water shed, 


3017 Tuomas Rowen, a witness for defendant, being sworn, 
testifies as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Thomas Rowe. I live in Essex, Kankakee 
County. I am connected with the Essex and Kankakee 
Drainage District in the Town of Essex and Kankakee 
County and the Town of Ritchie, Will County. The dis- 
trict contains 3,300 acres partly in Will and partly in 

3018 Kankakee Counties. 

When they commenced operations the territory con- 
sisted of ridges and sloughs. Two-thirds or better of the 
property was covered with water all the way from two 
inches to two feet. We constructed five miles and a half 
of ditches with a 12-foot finish and increased or dimin- 
ished as we went up one foot to the mile. The water 


662 


stood on the land from the first of November until the 
first of July. The land is perfectly dry now. The ditch 
3019 was completed July 20th last. The outlet is Horse 
Creek, which empties into the Kankakee River. Accord- 
ing to the season sometimes Horse Creek will rise ten 
to twelve feet in a day. 
3020 The district ditches are very nearly full; sometimes 
they overflow. No water on the land where the ditches 
3021 have been constructed. 
There are other districts that I know of. One is in the 
Township of Pilot in Kankakee. Possibly 10,000 to 15,000 
3022 acres drained by it. Since the improvement the water 
comes quicker in wet times. ‘The stream carries it 
quicker. 
There is another district in the Township of Sumner 
on the eastern part of Kankakee County. The ditches 
3023 are about four miles long, ten to twelve feet wide on 
the bottom. It drains nearly a whole township. The 
ditch is used for the tile as laterals. In every one of the 
districts there is used a great deal of tile. Some of the 
districts have as high as 200 carloads of tile from 18 
inches to 10 inches. The tile certainly drains it very 
much quicker than if it had to soak through the land. 
3024 I don’t think there was a drainage district in Kanka- 
kee County twelve years ago. I know all of the country 
north of the City of Kankakee clear to the county line. 
A few years ago it was nearly all covered with water. 
Since that time they have dug private ditches and put in 
tile. HEvery acre of that country you mentioned has got 
tile and it has nine-tenths of it been done in the last 
twelve years. This section of country out past the asy- 
lum farm was not capable of being cultivated before it 
was tiled. Two-thirds of the county has been changed by 
tiling. The water discharges into the Kankakee River. 
3025 Since these operations the Kankakee River seems to 


663 


have washed out a great deal and got deeper and wider. 
The effect is that there is more water in the wet times 

3026 and less water in dry times in the river. The greatest 
quantity goes towards the river in the spring when the 
frost is going out and the snow is melting, that cannot 
oo through the tile, and in carrying the water off now it 
takes days where it used to take weeks. 


3027 Cross-Examination by Mr. O’Conor. 


The water always comes to the Kankakee but it would 
take longer. It had to go there, there was no other way 
to get away. In dry times the Kankakee is lower than 
it was before. There isn’t as much water in it now as 
formerly. In olden times the lands were wet and when 
the rain came it overflowed. 


3028 Warren W. Leacu, a witness for the defendant, being 
sworn, testifies as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Warren W. Leach. I reside in Rushville, 
Schuyler County, Illinois. I have lived there 52 years. 
3029 During that length of time I have been thoroughly fa- 
miliar with the [llinois River. Have been boating on the 
river all my life since I was 13 years old. 

I am acquainted with the drainage districts located in 
Schuyler County. There are two completed districts 
and one that is formed but the work is not any more than 
commenced. The completed districts are the Coal Creek 
District and the Crane District. The Coal Creek District 
embraces 6,711 acres and the Crane District 5,094 acres. 
I spread the assessments on all of them. Coal Creek 
District is about four miles long; Crane Creek District 
is something like a mile or a little better. 


664 


The walls of the levees would be ten or twelve and I 
think fourteen feet in some places. They stand back 
from the river close to 100 yards. Before the levees 


3031 were constructed the [llinois flowed out of its channel 


and across and came up over the bank and went over the 
surrounding districts in times of high water, all over the 
low ground. It flowed over the ground that is now occu- 
pied by these districts. It stood in the neighborhood of 
a mile or a mile and a half wide and it would run on the 
other side of the river from four to six miles in width. 
The river was anywhere from five miles to several more 


3032 in width. Very nearly seven miles or a little more in 


width before the construction of the levee district and it 
would occupy the entire bottom. Since they have com- 
pleted them they are a success and have shut the water 
out of there. 

The district now being constructed is the Big Lake 
Drainage and Levee District. 

The Coal Creek District was constructed between 1895 


38033 and 1900. I don’t remember the year it was finished. 


Cross-Examination by Mr. O’Conor. 


Those I speak of were completed some time about 1900. 
I don’t know how far down the river we are from Henry 
or how far from Grafton at the mouth of the river. 

Coal Creek District is practically right west of Beards- 
town. 


3035 Grorce T. Dowsn, a witness for the defendant, being 


sworn, testifies as follows: 


Direct Examination by Mr. Chiperfield. 


My name is George T. Dowse. I reside in Lockport 
and have lived there 54 years. My business is dredg- 
ing, steam shovel work. 


665 


I have been acquainted with the Desplaines River above 
the point where the Sanitary District channel flows in all 
my life. The Desplaines River before the Sanitary Dis- 

3036 trict channel emptiesin hes west of the Sanitary District 
channel above Joliet at the upper basin, down on the east 
side of the old canal and on down the line. It runs all 
the way from 500 feet to a mile at places from the Sani- 
tary Canal. Before the Sanitary District channel was 
constructed the Desplaines River in dry seasons of the 
year was very shallow; in wet seasons the same as this 
it was very high. The condition of the Desplaines River 
above the point where the Sanitary District canal enters 

- it in the last eight or ten years would probably be a foot 
deep, from that to two feet. Most of the time a stream 
of water has been flowing in the Desplaines River. 

I know where the Sanitary District canal empties into 
the Desplaines River. 


3037 I have seen the Bear Trap Dam two or three times a 
year. I often go there. When I have seen the Bear Trap 
Dam I should judge there was about a foot of water 
flowing over the dam. It empties into the Desplaines 
River at Lockport. The Desplaines River at the point 
where the Sanitary District canal empties into it car- 
ries all the water that is naturally found in the Desplaines 
River. After the Sanitary District water enters the Des- 
plaines River it runs south down to and by the coke ovens 
of the new gas plant in Joliet into what is called the upper 
basin at the Robey street bridge. Running down from 
the upper basin over the Jackson street dam and on 
down through in this direction. 

3038 The Sanitary Canal and the Desplaines River come in 
together into the old canal at the upper basin at Joliet. 
The Desplaines River does not run into the Sanitary 
Canal anywhere. The Sanitary Canal runs into the Des- 
plaines River. 


666 


In the upper basin at Joliet, the stream is about 400 
feet wide below the Jackson Street Dam on down all the 
way up to 250 feet, maybe wider. I don’t know exactly. 

3039 The Bear Trap Dam at Lockport is 160 feet wide. 
Where the water goes through Joliet the banks of the 
stream are not built up with any permanent work except 
on the east side of the river at the Sanitary Canal where 
there are walls of concrete and clay. Where the river 
is confined by these walls at Ninth street, it is about 400 
feet wide. It varies from 200 to 500 feet. The narrow 

3040 points between Sixteenth and Ninth streets in Lock- 
port and from Sixteenth street down to the K. J. & EH. 
bridge is a very wide part. From the E. J. & E. bridge 
down to the Robey street bridge it is narrow. At that 
point the Desplaines River flowing all of the water that 
is found in the river naturally and all of the water that 
comes from the Sanitary Canal is not over two feet 
deep. 

At Ninth street I should judge the current is running 
at the rate of three miles an hour. At these narrow 
points where the river is narrowed down to 200 feet, 

3041 the water is two or two and one-half feet, | should judge, 
and flowing at the rate of three miles an hour, which 
carries all the water of every kind that comes from the 
Sanitary District. Where the river spreads out and is 
from 500 to 1,000 feet wide it would range in depth from 
two feet to six inches deep. J should think taking it in 
its deepest part it is flowing probably two and one-half 
or three miles an hour; in the shallow part about three 
to three and one-third miles an hour. 

There is no water that is discharged by the Sanitary 
District at Lockport that is not carried in that stream 
in that way. That condition that I have described has 
not changed during all the time that the Sanitary District 
channel has been operated, 


667 


3042 [know Hickory Creek and Spring Creek. Under ordi- 
nary conditions Hickory Creek is a very fierce little 

3043 stream. Spring Creek is southeast four or five miles 
below where the Sanitary District water enters the Des- 
plaines River. Hickory Creek also enters the Desplaines 
River below the place where the Sanitary District water 
comes in, something like two and one-half miles. Neither 
Hickory or Spring Creek are fed in any way by waters 
from the Sanitary District. 

8044 Six or seven years ago we had quite a freshet on Hick- 
ory and Spring Creeks. At that time both creeks were 
overflowed and ran over the Rock Island tracks east of 
Joliet, down over Eastern avenue and Jefferson street 
and at that time there were two or three lives lost. Down 
through that part of the city Hickory and Spring Creeks 
made a stream a mile wide. 

Right along on Chicago street and on Jefferson street 

3045 there was about eighteen inches of water. They are a 
little lower streets than other portions of the city. Where 
the people were drowned the stream got so deep that 
they could go around in boats and did go around in boats 
getting the people out of the houses. That condition con- 
tinued probably twelve hours or such a matter. 

Spring and Hickory Creeks run back east quite a ways 
into the country. J think Hickory Creek runs back in 
the Calumet region. I have known floods like this to 
occur twice. The last one was after the Sanitary Dis- 
trict channel was opened. The Sanitary District did not 
add any water to that creek. 

3046 Iam acquainted with the Illinois River and have been 
since 1880. I have been engaged in dredging at La Salle, 
Henry, Copperas Creek and Peoria. I have had about 
fifteen years dredging experience on the Illinois River. 
I knew it before the Sanitary District channel was opened 
and had an opportunity to see and observe the stages 
of the Illinois River since. 


668 


3047 I think since the Sanitary District was opened as com- 
pared with the stages before the Sanitary District was 
turned into the Desplaines River, there is probably eight 
to twelve inches difference. I have seen the Kankakee 
above the point where the Sanitary District waters and 
the Desplaines enter it. You can see it for a couple 
of miles. I have seen it at a point below where the Llli- 

3048 nois River is formed. Where the two streams connect 
the river always looked a little wider and deeper than 
other places on it. With the exception of being a little 
wider and somewhat deeper, there is no difference. 

I should judge probably the Illinois River below the 
junction of the Desplaines and Kankakee was 500 feet, 
maybe a little wider. I have seen it when at lots of 
places you could see the rock since the Sanitary District 
channel was opened. 

When I say there has been a difference of eight to 
twelve inches in the stage of water, I refer to the low 
water. 

3049 Cross-Examination by Mr. O’Conor. 


I am not in the employ of the Sanitary District, have 
never been in their employ, have never done any work 
for them. I was a witness for them once in Chicago, 
not in the same kind of a case, about seven or eight years 
ago. : 

I was never engaged to do any work for them at Lock- 
port. I never took any measurements of the water there 
but just read the gauge there sometimes when I would be 
there. I have read the gauge at Lockport when a foot 
of water was going over the dam. I haven’t any judg- 

3090 ment as to the number of cubic feet flowing over the 
dam. I could not say as to whether I ever saw more 
than one foot of water flowing over the dam at Lockport. 
I saw the dam last summer. It might have been July or 
August. I looked at the dam to see how much water 


669 


3051 was going over. There might have been a foot or more, 
Il don’t exactly know. 

[ cannot say when I saw the dam before. I would go 
over there two or three times a year; somebody would 
come to Lockport and we would walk over to see the 
controlling works. Just take our friends along, did not 
go to make any notations of the flow. 

There is an opening there other than the dam where 
they run their power with. It is on the south end of the 
dam. I cannot say this summer whether it was in July, 
August or September. It might have been May. I can’t 
recollect who was visiting me. It was on Sunday. It 
was between Labor Day and the Fourth of July. 

3053 My judgment as to the width of the dam is based 
upon what I heard the builders say in 1893 or 1894. I 
do not know that I am unable to figure cubic feet. I 
don’t know how fast the water would flow over the dam. 

3054 It was going a good deal faster than it was coming down 
the Desplaines River. 

I have seen the dam when there was a foot of water 
flowing over it; also seen the Desplaines River when 
there was a foot of water flowing in it. I could not say 
how much more water was going over the dam per minute 
than was going past a given point in the Desplaines. If 
there was a foot of water coming over the dam and a 
foot of water in the Desplaines River there would be 
more water in the Sanitary Canal. If the water had a 
chance to spread and was coming three times as fast 
as the river is flowing there would not be three times 
as much. ‘The water would spread out to where they 
were together. 

3055 The Desplaines River at Ninth street is 350 to 400 
feet wide. I could not say when I have seen the Des- 
plaines River at Ninth street during the dry weather sea- 
son. I have seen it in the summer time when I would 


670 


3056 go across that bridge. I have seen a foot of water 
there this summer during the summer months. The Des- 
plaines River has run a foot higher during the summer 
along there than it has been in two years. I have seen 
the Desplaines all summer, it was a foot deep. 

I would not know the amount of water flowing over the 
Bear Trap Dam if it was two and one-half feet deep or 
the speed at which it flows. 

I know the territory that belongs to the Sanitary Dis- 
trict that lies below the dam in the Desplaines Valley 
there. They own probably three-quarters of a mile wide 

3057 for a distance of two miles and a half. 

After we get down the river three miles there is a big 
marsh; the river spreads over the marsh. 

3058 I think the Sanitary District has added from the con- 
trolling works about a foot where the two streams come 
together. The water of the Desplaines River flows faster 
or slower depending upon the season. If it is a dry 
season there isn’t much water running in the Desplaines 

3059 River. In dry season the Sanitary District has in- 
creased the flow both in quantity and in velocity some- 
what; not very much. Probably would put a foot more 
water in there. 


3060 The lowest water I ever saw going over the dam may 
have been two feet during some of the time. There 
would be about a foot of water out of the dam. I think 
in the summer time there is less water flowing over the 
dam than in the winter time. The government won’t 

3061 allow them to draw so much water in the summer time 
as in the winter owing to the shipping in Chicago. The 
shipping season opens about the Ist of April. I never 
remember being there in the winter time. 

I have not dredged any at La Salle since six years 
ago this summer. I was dredging at La Salle in Sep- 
tember and October six years ago, in the La Salle basin 


671 


at the point where the canal runs into the Illinois River, 

just at the point down below the zine works. Before that 
3062 I dredged the year previous, in 1905. I was there four 

different times before 1905, the first time in 1884. 

I determined that the river had been raised there, I 
think, eight to twelve inches in the different times I 
have been on the river working. In 1894 there was 
some difference. If we had a little rain up north we 
would get a little rise in the river. I done work there in 
1905 and 1906, or 1906 and 1907. There was a little 
difference I noticed in 1905 as compared with the year 

3064 1894. There was a little rise. I think 1t was 1906 and 
’07; I was there only twice. It was two of the three 
years, 1905, 1906 or 1907. I got there on the 9th day of 
September the first year. The water was probably then 

3065 about a foot higher than it would be in real dry sea- 
sons. It was over the mitre sill of the lock. I don’t 
know what put it there unless it was the rain. I did not 

3066 make my conclusion that the level of the Lllinois River 
was eight to twelve inches higher than it had been prior 
to that time at that time. I noticed it at different times 
prior down the river, down at Henry and Copperas 
Creek. I would see more water flowing over the dam 
than when I was first down there in 1897. 

In 1897 I put flash boards on the dam at Henry. If I 
remember rightly, they were twelve or fourteen inches 

3067 high. The last time I was at Henry there were no flash 
boards on the dam. I should judge there was ten or 
twelve inches of water going over the dam without any 
flash boards. We put flash boards on because the water 

38068 was so shallow in the river at those places we dredged 
out so that the boats could go through. The boats did 
not go over the dam in 1906 while I was there. They do 
so every spring. J don’t know the gross quantity of 
water flowed in the Illinois River during any month of 


672 


the summer, or how much of that water in the Illinois 
River comes from the Sanitary District or from other 
places. 

3069 The point I have in mind as a matter of conclusion 
that leads me to say the river has increased in height 
from eight to twelve inches in I have noted the dam in 
dry seasons when I was down there four or five years 
ago, The water was running over the dam in the month 
of September when I was there and before in the month 
of September it was not running over before the Sani- 
tary District water was turned into the river. 

3070 The mitre sill that I have formerly referred to is in 
the bottom of the lock at La Salle, lock 15. It might be 
about twelve feet below the top of the lock. By the use 
of the mitre sill is the only way we had of telling about 
the water. We would go over and look at the gauge and 
the gauge of that water and we were able to tell the 
height of the water on the mitre sill, so we could see 
about the boats goimg over. The water backed up in 
this from the river. If the river backed up over this 

3071 sill we could tell by that. We would know just about 
the condition of the water on the mitre sill. That gauge 
was there to explain to the lock tender what water he had 
over his mitre sill. It is not true that the condition of 
the mitre sill depended on the water in the canal from 
the lock on down to the river, because below there where 
the stream has come from Joliet it is shallower than up 
this way. 

There is no other spot that I have made a conclusion 
that the water has increased eight to twelve inches only 
I had been down on the canal and I heard people at Ot- 
tawa and down the river say that the water is higher in . 
the river than before the District turned it in, but I 
couldn’t see it that way. I never could see it, because I 
never thought the amount of water that went over the 

3072 Bear Trap Dam could raise the water that high. 


673 


I believe about 200,000 cubie feet of water goes over 
the dam. I noticed down this way that the river is higher 
than it used to be. I should say 10 or 12 inches. Here at 
Ottawa I have a general recollection of what it used to be 
and I think it is about ten inches higher than it used to be. 

3073 I noticed coming down on the train this morning that 
the Fox River was up a little bit, but you could see the 
sand piles, coming across the Rock Island you could see 
the sand ridges. They were on the south side of the Rock 
Island bridge. The sand piles probably changed every 
year. 

I think I first noticed the river was ten inches higher at 
Ottawa the first time I came down here after the water 

3074 was turned in. That was in 1902. I have been over here 
on the bridge across the Illinois River on La Salle street. 
The river looked a little higher. I had no object by which 
I made measurements or calculations, just looked at it. 
That is not the way I made all my observations, just by 

3075 looking at it, but by the height of the water flowing over 
the Henry Dam and Copperas Creek. I know the water 
is from 8 to 12 inches higher in dry seasons going over 
those two places than it was before the Sanitary District 
turned the water into the canal. That is going over the 
dam at Henry or Copperas Creek. 

In 1906 or 1907 I noticed the water in La Salle was 
probably a foot higher. It would not be as high here as 
it would be at Ottawa. I made the determination at La 

3076 Salle in 1906 or 1907 by taking that point from a place 
down opposite the zinc works where we tied up our boats. 
I know that was in 1897 before the water was turned in. 
Then I went back again and I noticed on the crib at the 
zinc works, I noticed the water was a foot higher than it 
was when I was there before. It was about the same sea- 
son of the year. | 

I don’t know the amount of rainfall that had taken place 


674 


prior to both observations but it is my conclusion the 
water had been raised about a foot. It was the same in 
1906 as in 1907. It is higher now than it would be in a 

3077 drier season. The only thing I can judge it from is 
where I am working, the Desplaines River is higher than 
it has been for three years. I have not seen the Illinois 
River since 1907. 

I first knew I was going to testify in this case last Sat- 

3078 urday. A man by the name of Delaney called me up and 
said Mr. Nadelhofer wanted me as a witness down at Ot- 
tawa. Mr. Nadelhofer is employed by the Sanitary Dis- 
trict. I have not made any observations along here for 
the purpose of testifying. I do not think the [llinois 
River was two or three feet higher in 1906 than it was 
when I last saw it. The last time I saw the river was 
four years ago. I did not make any calculations at that 
time. 

3079 Q. I am talking now about this one foot calculation 
you made. Are you willing to be bound by the statement 
it was one foot or might it not have been two feet or 
three feet? 

Mr. CuIPeRFIELD: I object to the part of the question 
that requires the witness to be bound by the statement, 
That is on the same line as ‘‘Are you willing to swear,’’ 
and so and so. 

The Court: I think I will overrule the objection. 

To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 

A. Why, at the time I was there I would be willing to 
bind myself it was about a foot, but of course after 1 went 
away from there there might have been heavy rains or 
something that would raise it higher. 

There isn’t anything else that would raise it besides 
heavy rains that I know of. I have not observed the trees 
three or fours years ago along the banks of the Illinois 


675 


River or whether they are standing out in the water now. 

3080 I did not have any reason to make observation going 
down the river at that time. I did not. Whether or not 
the trees along the bank of the river during the summer 
months are now standing out in the water or whether lots 
of them are dead, I do not know. 


3081 Joun Donovan, a witness for the defendant, being 
sworn, testifies as follows: 


Direct Examination by Mr. Chiperfield. 


My name is John Donovan, residence Chicago. I am 
a steamboat captain. J have a contract with the City 
of Chicago. I have been in the boat business all my life. 
I have been boating between Peoria, Pekin, Havanna and 
Chicago and been engaged in the business 23 or 24 years. 
I am now engaged in Chicago running a canal boat. 

3082 I am acquainted at Lockport and a little in Joliet, also 
with the Desplaines River. I have lived very close to it 
for a while. I lived in Lockport. I live in Lockport and 
when I ain’t working in Chicago. I have known the Des- 
plaines River for 25 years. I know how it used to be in 
times of low water. It was very low. 

During the last eight or ten years above where the 
Sanitary District channel comes into the Desplaines 
River, I have observed the Desplaines River with ref- 
erence to the amount of water it carries. It is over the 
bank there sometimes. I believe the Desplaines River 

3083 carries more water in the last eight or ten years than 
it did previously. It does at Lockport where it enters 
into the drainage. 

I have seen the controlling works and drainage canal a 
good many times and been acquainted with them since . 
the Sanitary District channel was opened, and have seen 


676 


the water flowing over the bear trap dam. At times I 
have seen the water flow over the bear trap dam when it 
did not appear as if there was more than six or seven 
inches going over. I have observed it from the bridge 
running across the channel at that point. 

3084 From the point where the junction is made by the wat- 
ers from the Desplaines River and the Sanitary District, 
the water keeps on going down through the Desplaines 
River through Joliet. I have seen it in Joliet. In the 

3085 narrow portions in the town the river is about 150 feet 
wide. There is a concrete wall on one side or both sides. 
It is not any wider now than it was before the Sanitary 
District was opened. After the Sanitary District was 
opened it don’t look to me as though there was more 
than four or five feet of water at that place. There is 

3086 no way for the Sanitary District water to be carried off 
except through the Desplaines River as it flows through 
Joliet. The current at that place is about three miles. 
After that it goes south and finally joins the Kankakee 
River. Before it reaches the Kankakee River, Spring 
Creek and Hickory Creek flow into it. 

I know Hickory Creek, but I am not very well acquaint- 

3087 ed with Spring Creek. I think in 1882 Hickory Creek 
drowned out everything there. JI was going from Chi- 
eago to Lockport that morning and we couldn’t go up on 
the C. & A. and we went down to Joliet to get the Rock 
Island and she went up to Hickory Creek and stopped 
there. The stream was all over the country there. Cov- 
ered a block or two where the train was stalled. I could 
not get to the station at Lockport on account of the water 
being headed off there at the penitentiary. The water 
eame down through there by the penitentiary. 

T have seen Hickory Creek in times of high water once 
_ before that. There has been high water in Hickory Creek 
from time to time during the time I have known it. 


677 


3080 I have done boating on. the Illinois River and have 
been up the old canal as close as I could get to it where 
the Desplaines flows into the Kankakee and forms the 
Illinois. Since 1900, I have seen where the Desplaines 
flows into the Kankakee. I have never been able to see 
any difference. I could see the cattle ford the river just 
the same, standing out there in the water and walking 
back and forth since 1900. The stream could not be any 

3089 wider. It would be probably a couple of blocks or may- 
be 400 feet. 

I have boated on the Illinois River as far as Pekin, 
Peoria, Havanna, Chillicothe and along there and up 
this way as far as Shippingsport. During the years I 
was on the Illinois River I had an opportunity to observe 
the stages of the water before the Sanitary District was 
opened and had an opportunity to observe the stages of 
the water since the Sanitary District was opened. 

3090 When I navigated the river down there in low water 
when I would leave La Salle, I used to have landmarks 
away down to those bridges, I would have marks. The 
reason I have those landmarks is because it used to give 
me kind of an idea how close I wouffl have to run for 
the channel in low water. In low water we had to have 
those marks. I had them before the Sanitary District 
run through there and [I had them afterwards in low 
water. : 

The first time I was down there after it was opened up 
in July, the only difference I could see was that there 
Was six or seven inches, maybe, in 1901. 

3091 Based upon my knowledge of the Illinois River up to 
the present time in low water, I would say that there 
is a little difference. I would put it at a foot. In high 
water you could not get at the difference at all. If it 
was high water it was done by the rain and such as that. 
I know the high water on the Illinois River before 1900. 


678 


I have seen the water on the Rock Island tracks from 
Peru, 21-foot rise. I don’t believe I have ever seen it 
as high since. 


3092 Cross-Examination by Mr. O’Conor. 


I was on the Illinois River last, maybe four years ago 
this summer, August or September. There was a good 
fair stage of water. It was not low or high. Since the 
district was turned in [ have noticed just a little differ- 
ence. 

T said the low water you could notice a little difference, 
about 12 inches. The stream travels faster, more cur- 
rent at the wider places. I don’t remember whether 1900 
was adry year. I was in Henry July, 1901, I never took 
any gauges or measurements in order to ascertain how 
much of the water that passes was actually natural water 
and how much of it was Sanitary water. I have never 
been down at the Bear Trap Dam when there was more 
than six or seven inches flowing over it. The flow over 
the Bear Trap Dam was much faster than the Desplaines 
River was flowing, It had about a 12-foot fall there, I 
couldn’t say how fast. The Desplaines was going three 
miles, I mean at Joliet in the summer time. That is 
where they have confined the stream down there. I don’t 
know how much water flows over the Bear Trap Dam in 
the last seven years. I would not have any means of 
judging how many cubic feet pass over the dam when 
they have a 6-foot flow. The way I could tell I looked 
at the dam and you could see about six inches of water 
flowing there. I couldn’t tell how far down it was at 
the present time or anything about it or how wide the 
dam was. 

I believe in 1902 we had a cloud burst in the vicinity 

3095 of Joliet. That was the time the city was flooded down- 
town. I don’t remember a cloud burst, I don’t remem- 


679 


ber whether it was a cloud burst or not. The flood was 
brought on by heavy rains. There have been several 
floods there. Spring Creek is higher in the spring than 
at other times. It is higher now at all times because 
they have got more water coming in at different places. 
They have got that all dug out and have sewers coming 
into it from all over, big tiles into it. They tell me there 
is more water in it now than ever. I last saw it three 
months ago. I think there was more water in it than 
formerly. I have seen it when there was no water in it. 
I have not seen it during the last ten years when there 
was no water in it. 

3096 I never did any work for the Sanitary District. At 
low water since 1900, I have noticed an increase in the 
level of the Illinois River about a foot over what it was 
prior to that time. I couldn’t say definitely it was one 
foot, that is what I judged it raised, eight inches or a 

3097 foot, or ten inches. Somewhere in that neighborhood. 


Rosert SHANNON, a witness for the defendant, being 
sworn, testifies as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Robert Shannon. I reside at Joliet. I 
am a dredging contractor and have been engaged in 
business in Will and Kankakee Counties. Have been 
dredging farm drains. 

Among the work which I have done in those counties, I 
dug Spring Creek in the City of Joliet, 80,000 yards, and 

3098 from there | moved over to Kendall County and dug 
five miles, for farm drainage purposes. I could not tell 
the acreage that was drained but the land was drained 
for a mile on each side of the operations and some places 
less. It drained into the Fox River. 


680 


In Kankakee County I dug the Raymond Drainage 
Ditch, seven miles, located eight miles west of Kankakee, 
or near the central part of the county. It was 30 feet 
on top and 12 feet on the bottom, and an average depth 
of 6 feet. 

The Kendall County Ditch was 25 feet on top and 10 
feet at the bottom. The Spring Creek improvement was 

3099 40 feet on top and 9 feet cut, 9 feet deep. Spring Creek 
empties into the Desplaines River. The Kendall County 
improvement empties into the Fox River. The Kankakee 
County improvement empties into the Kankakee River. 

I am now digging four miles in Will County, a ditch 
four miles long, which empties into Spring Creek, and 
from there into the Desplaines River. That improve- 
ment is 20 miles away from the previous improvement in 
Spring Creek. Spring Creek, as far as I have done it, 
starts up in Green Garden Township and runs down 
through Joliet Township and empties into the Desplaines 
River south of the City of Joliet. Before I commenced 
to improve it Spring Creek at times was a good sized 
river; other times it was not so large. I say it was as 

3100 large as a good sized river, it was 20 or 25 feet across, 
3 to 5 feet deep. 

This improvement in Spring Creek was conducted four 
years ago; Kendall County three years ago; the Will 
County work last season and the Kankakee County work 
last season. The condition of the country in the vicinity 
of these ditches before I commenced to work was all 
water; afterwards it drained into the ditch and then into 
the rivers I mentioned. 

IT am acquainted with Hickory Creek. It is a part of 
Spring Creek, the two of them forms one at the lower 

3101 end. I have known of high water on that country at 
times of rain in Hickory Creek. I have known it to 
flood the whole section of the country there, a section a 


681 


mile square. I should say eight to ten feet it would rise. 
I know of casualties happening there; at McDonough 
street they were driving across and two girls were 
drowned by the creek. The rise was so sudden; that was 
in June, 92. I know of people being imprisoned in the 

3102 houses there at the same time. I helped them out. The 
house was along Joliet street, Desplaines street, Water 
street and up as far as Chicago street. The country was 
covered with water at a depth of from three to eight 
feet. We went about in boats in the public streets. That 
condition prevailed for three days. The Sanitary Dis- 
trict does not flow into Hickory Creek. The Sanitary 
District in no way feeds Hickory Creek. 

I know where the Desplaines River is located, have 

3103 known it for 40 years. Before the Sanitary District 
was opened in low water there was always water there. 
Sometimes in different places two feet or three feet. I 
know certain places where there was 20 feet. During the 
last six or eight years since these drainage operations 
have been carried on, there is a difference in the amount 
of water that the Desplaines River carries above the 
point where it joins with the Sanitary District water. 
The river is higher above where the Sanitary District — 
comes in on account of the tiles and drainage flowing in 
there. It carries more water. 

3104 TI have seen the place where the Sanitary District dis- 
charges into the Desplaines River. It is about 500 feet 
above Robey street in Joliet. The Desplaines River and 
Sanitary District current come together. I have seen the 
Bear Trap Dam. I have seen it every Sunday pretty 
near, used to go fishing up there on the Desplaines River. 
I have observed the water coming over the Bear Trap Dam. 
I have noticed it as much as four inches coming over 
the dam and as much as 10 to 12 inches coming over the 

3105 dam. I don’t think I have seen more than 10 or 12 


682 


inches. There is no water of any kind coming from the 
Sanitary District channel discharged at the controlling 
works that does not enter the Desplaines River. The 
Desplaines River flows through the City of Joliet. In 
passing the portion of the city in the most thickly popu- 

3106 lated portion it is about 320 feet wide; in the narrower 
portions it is about 220 feet. 

All the water that comes from the Desplaines River 
and all the water that comes from the Sanitary District 
flows between two walls constructed there. I should say 
at Jefferson street it was three feet six or four feet deep; 
the current 1s about two and one-half miles. 

I know where the Desplaines goes down and joins the 
Kankakee; I have fished there hundreds of times since 

3107 1900. Below that point the river would be perhaps six 

3108 feet deep. The water is deeper and swifter on the 
Illinois than it is on the Desplaines. At that point the 
Illinois River would be about two feet deeper than it 
was before the junction was made by the Desplaines and 
Kankakee where the two streams unite. 

The Kankakee River at its mouth is about three feet 
deep. Then after the Desplaines River would flow into it 
it would raise the Illinois about two feet. I should judge 

3109 that the current there is running about four miles an 
hour. There is a tolerably steep slope at that point. 

I have been acquainted with the Illinois River below 
these points down as far as DePue Lake. That is located 

3110 near Bureau Junction. I have been acquainted with 
the river since the opening of the Sanitary District chan- 
nel. I observed the river before the opening of the chan- 
nel. I was hunting on Dresden Islands for a good many 
years before the Sanitary District water was turned in 
there and afterwards. Since the Sanitary District was 
opened you could see something of a change in the level 

3111 of the stream. On the point of the island I should judge 


683 


they raised the water from eight to ten inches since it 
was turned in. The river in ordinary stages is about 500 
feet wide. It parts at the island, 250 feet on each side. 


Cross-Examimation by Mr, Butters. 


In order to tell the difference in the depth of the Lli- 
nois River you would have to know the conditions, all 
the conditions for a period of time before you attempted 
to give the measurement on that part of the Llinois 

3112 around Dresden. I never measured it, but I have hunted 
there when I drew my boat up and we had a blind built 
there and the water has never raised into that blind yet, 
into the blind where we shoot ducks. That is about 12 

‘ inches above the water there. 


I could not tell where the average low water stage 

was. The average I was giving was on the water as I 

have seen it at times. I don’t know what the conditions 

were existing for a month or three or four weeks before 

those dates. I don’t think it would necessarily depend 

upon what the conditions were for a period of time be- 

fore | took my measurements in order to get the same 

period of time of the succeeding year and like conditions, 

to tell the conditions. If I was down on the shore to hunt 

3113 or fish there, I could tell whether it was higher or lower 

3114 at that point. If I was wading across, going there to a 

certain portion of it to hunt ducks, I would know whether 

it was high or low. I think I would know the compara- 

tive stages of water at that time. I don’t think a person 

who lived on the bank of the river or near to it and sees 

it from day to day would have a better opportunity than 

one who saw it but once every year or so. He may not 
observe it the same way. 


T am familiar with the Desplaines River just below 
Lyons. I know the spillway built there by the Sanitary 


684. 


3115 District. It is alongside of the river. I knew that be- 
fore that was put in a part of the water that flowed in the 
Desplaines went into the Chicago and into Lake Michi- 
gan. It turns that part of the water that used to run 
into Lake Michigan this way. I don’t know how large 
a part is drained by this structure. There must be some 

3116 because it forced them to put it there. I don’t know 
what the area was. 

I am practically familiar with the Illinois River from 
Joliet to La Salle in places. I could not say to La Salle, 
just down to Starved Rock. 

Q. Have you observed in your travels down there the 
trees that are dead now, standing out in the water per- 
petually from January Ist, one year to January Ist, the . 
next year, have you observed that? 

Mr. Cureerrienp: I object, assuming that is true. 


a Objection overruled; to which ruling of the court, 
the defendant, by its counsel, then and there duly 
excepted. 


A. There are dead trees there. 


I know some trees grow in water, some that don’t. I 
don’t know they used to be on dry land. I don’t know 
whether they were ever on dry land. 


Q. Isn’t it a fact that the water there, we will say, 
since 1900, probably since 1902, has been many feet deep 
around those trees and they are dead from the effects of 
water? 


Mr. CHIpeRFIELD: I object, if your Honor please. 
Objection overruled; to which ruling of the court, 
the defendant, by its counsel, then and there duly 
excepted. 
3118 <A. TI could not say there was a foot deep or two inches 
deep or anything. I know there are dead trees there and 
that is all I do know about it. 


685 


I don’t know those trees did not have their birth in 
the water. 

I have seen the water on the Bear Trap Dam four inches, 
perhaps a foot deep going overthe Bear Trap Dam. The 
Bear Trap Dam is something like the leaves of a book. 
The open side would be down stream. When the dam is 
clear up there is no water coming over. As they let it 
down this way, the flow increases; tends to lower the 
water in the channel, as they lower it more water comes 
over. I could not tell what stage the water was when I 

3119 saw the dam. I know the Sanitary District officials can 
tell the number of cubic feet passing over the dam. The 

3120 dam looks to be 150 to 200 feet wide. When they raise 

the dam the tendency is to check the water, that is, it 

runs faster and goes over in a thinner sheet. I pretend 
to say that I could stand on the bridge looking down and 
form a correct idea of the number of inches of that sheet 
of water. I did not put a stick init. I can look down 

3121 and I ean see the dam. It might have been 9 o’clock, 
noon, or 4 o’clock in the afternoon when I was coming 
back. I don’t think I ever saw two feet and a half or 
three feet of water on the dam. I did not or I would have 
told you. 

The channel at Jefferson street is 220 feet wide. The 
water was about 3 feet 6 to 4 feet deep, running about 2 
to 24 miles an hour. I never measured it. I base my 
judgment on an inspection of it. I never followed floats 

3122 down there,: but I have followed blocks down there. The 
Illinois flows about four miles an hour and about six 
feet deep for about a mile from its source. I do not 
know what portion in the Lllinois River in July, 1904, was 
Sanitary water. I don’t know whether the Sanitary Dis- 
trict engineers can tell how much water in the Illinois 
is Sanitary District water. 


686 


3123 Grorcre W. Guertin, a witness for the defendant, being 
sworn, testifies as follows: 


Direct Examination by Mr. Chiperfield. 


My name is George W. Guertin. I reside in Chicago. 
IT am connected with R. G. Dun & Company as chief clerk. 
The business of R. G. Dun & Company consists of gath- 
ering and distributing information for the benefit of 
their subscribers to enable them to determine credit risks. 
I believe the La Salle County Carbon Coal Company 
is one of our subscribers. We have never had a very 
3124 complete statement from the company. Without refer- 
ence to whether it is a complete statement or not, we 
have a statement from the La Salle County Carbon Coal 
Company with reference to their financial condition. One 
statement was received September 24, 1908, and another 
one October 26, 1909. These are the only two statements 
that we find. 
Referring to the statement of October 28 or 26, 1909, 
I have the envelope in which it was received. That state- 
ment was received in due course of business by R. G. 
Dun & Company and purports to be signed by H. S. Ha- 
3125 zen, treasurer. It was received by R. G. Dun & Com- 
pany October 29, 1909, and ever since that date it has 
been in our files. It was received in an envelope ad- 
dressed to W. A. Douglass, manager. It was one of the 
printed envelopes and forms which is used by R. G. Dun 
& Company. I am familiar with those facts. 
The statement of September 24, 1908, was received 
September 26, 1908. I have the envelope in which that 
3126 statement was received. The statement purports to be 
signed by H. 8. Hazen, treasurer. It appears to be on 
the letterhead of the La Salle County Carbon Coal Com- 
pany, and the envelope bears the stamp of the La Salle 


687 


County Carbon Coal Company and postmarked La Salle, 
Illinois. That was received by us in due course of busi- 
ness. It has remained ever since in the files of R. G. 
Dun & Company. The offices of R. G. Dun & Company 
are located in the New York Life Building, Chicago, Ill- 
nois. As chief clerk, as a part of the business which 
I supervise, I have knowledge and custody of these pa- 
pers. 

3127 Mr. CurperFrELD: Now I desire, if your Honor please, 
and we will not take them, they will be restored to you 
in any event—lI desire to have the envelope addressed to 
W. A. Douglass, manager, marked as an exhibit for 
identification. 

Whereupon said envelope was marked Exhibit ‘‘35.’’ 
Mr. Curperrietp: I desire to have the statement ac- 
companying the envelope which is dated October 26, 1909, 
marked an appropriate number. 
Whereupon said document was marked Exhibit ‘‘36.’’ 
Mr. CuiperrieLtp: I desire to have the letter of Sep- 
tember 24, 1908, marked as an exhibit for identification. 
Whereupon said document was marked Exhibit ‘‘37.”’ 
Mr. CuHrPerFieELD: I desire to have the envelope ac- 
companying that marked as an exhibit for identification. 
Whereupon said document was marked Exhibit ‘‘38.’’ 
pieore Which said marked exhibits ‘°35,?? 36,77'“‘37’’ and 
‘¢38,’’ are in the words and figures, respectively, as fol- 
lows: 
Hxuteir ‘£35,’? 


aL29 Exxutsit ‘‘36.’’ 
Statement as a Basis for Credit 
made to 
Tue Mercantite Acrency, R. G. Dun & Co. 
For the use of its subscribers only. 
DS cele i et el ear et as OT uaa As: ogee 
Engaged in the Coal business at .............. Co. of 


os 8 8 8s 6 6 & # 6 8 6 8 um, 6 8 6 oe 6 he Oe! 6 6 6. ere e eb 8 (eee, 6 Ce) a 5e eee ele 0 ee eee 


Succeeding 5.54 is SE SA ee 
Authorized capital $1,000,000. Number of shares 10, 000 
Par: Values S243 ee eee 


Amount of stock subscribed $........... Amount paid 
in (in cash) $900,000. 
Amount paid in otherwise than cash, aA how $:." see 


10,000 not issued. 
Limit of debt allowed? $ None How many acres coal 
do you own? 23400 A 
How many acres surface land do you own? 2100. What 
is its value per acre? $100 to 250 per A. 
How much (if any) is it encumbered? $ None How 
many acres do you lease? None. 
How much royalty do you pay? $ None How many 
shafts do you operate 5 
How much have you invested in engines and hoisting 
machinery Pit eae ee eee 
How much invested in tracks and tools? $.....:.79)%% 
How much invested in coal cars? $ None Are ee 
owned ‘or leased?” een 
How many miner’s houses do you own? 179 What is 
the value of each? $ Av 600 
Kneumbrance, (if any) on same? $ None If machinery 
is mortgaged, how muchw$, None. ..: 22.4.2 ee 
What is the capacity of your mine? Your average daily 
output? 
What is the amount of good accounts? $ All good. 
Amount of good notes? None—Cash only. 
Amount of cash on hand or in’ bank @S. -..... | eee 
Amount of bonded indebtedness $ None 


689 


meeting asthe same secured? $...s 0. 0S. oi vege es atyy, 
How much is the floating indebtedness? $ None. 
Do you own a supply store in connection? No How 
Meminave you invested therem?) $.. 0.005000. 0 eee. 
Memmeetny fire Shy lets. Lor Pum ees BBO CO aes Beles eae et 
Bers er TOS, 4.2! aclet et ee oe VE Rros mec nye tue 8 
ee ate kon, eae AOE he NT CARR Sree... eke. ase 
ee MD 2am feiss) Ate edt thats og sa Die 
Sign a full name, La Salle County Carbon Coal 
Company. 
Signed by H. S. Hazen, Treas. 
References: All bills of every kind are Audited and 
paid the 20th of each month .......... No indebtedness 
Perrier iow ber tidis date: seas) <2). c0d Pale hla ees 
This information for your use only and Not to be given 
to Public. 
We don’t ask much Cr. and feel like Vanderbilt on a 
certain occasion. 
Remarks: 


3130 Tipit "3 (.°° 
‘*La Sauxe, Lll., September 24, 1908. 
R. G. Dun & Co., 
Chicago. 
GENTLEMEN : 

Have yours of the 23rd inst., with request for state- 
ment of finances of this company, and beg’ to say for 
the reason that there is no probability of our company 
ever being called upon to issue bonds, or ask large or 
extensive credits, we do not think it necessary that the 
financial standing of the company should become com- 
mon property of every Tom, Dick and Harry, who wants 
a report. The Company’s assets figure very largely over 
a $1,000,000,000.00 and we have no encumbrances on the 


690 


property, no bonds, and no debts of any kind, except such 
as are carried by the stockholders themselves. 

Our liabilities consist of small merchandise bills, and 
bills for repairs to machinery. Outside of this, we incur 
no indebtedness, except occasionally to buy an engine, 
or something of that kind. 

Very truly yours, 
(Signed) H.S. Hazen, 

Treasurer.”’ 

SIS Hib ecco 
3132 Mr. CuyiperrieLtp: I desire to offer in evidence Ex- 
hibits 35, being the envelope addressed to W. A. Doug- 
lass, 36, being the statement made by Howard S. Hazen, 
treasurer, the letter of September 24, 1908, marked Ex- 
hibit ‘‘37,’’ and the letter accompanying the same marked 
Exhibit ‘‘38.’’ I desire to offer the same and each of 

them in evidence. 

Objection by plaintiff; objection sustained; to which 
ruling of the court the defendant by its counsel 
then and there duly excepted. 

Mr. CurperrieLp: Your Honor, this is a very import- 
ant matter and before the court passes on it I want to be 
heard briefly. 

The Courr: Well, I will hear you. You want to be 
heard now or let them take out the original. 

Mr. CuIperFIELD: Well, this witness is here now, and 
if it is anything that goes to other than the materiality 
or other than the foundation— 

3133 Mr. O’Conor: We don’t care to cross-examine. 

Mr. Butters: We don’t object to the foundation. 

The Courr: Well, I think I will overrule the objection 
on Mr. Butters’ statement.’ I overrule the objection. 

Mr. Butters: We want to be heard on the materiality. 

The Court: I will hear you then. I will hear you 
now. 


691 


Mr. O’Conor: We would like to take it up out of the 
hearing of the jury. 

The Courr: I will hear you. You may retire for a 
few minutes, gentlemen. 

(Jury retires.) 

The Wirness: Will you keep the papers here? 

Mr. Cutrperrietp: At the appropriate time I will ask 
to have compared copies substituted. 

The Court: I will hear what you have to say now. 

Mr. O’Conor: Let me read the letter first. 

The Court: I don’t know what is in the letter. I am 
assuming there is a statement there relative to the value 
of the land. 

Mr. CHIPERFIELD: There is. 

The Court: So far as that is concerned, the other 
part of it is not proper. 

3134 Mr. Cuiperrietp: That is all we are concerned in. I 
don’t know whether there is a statement in the letter in 
relation to the land. 

The Court: If there is I will exclude it. 

Mr. O’Conor: The only thing is they figure the assets 
the same as subsequently figured on it, that is the whole 
statement. The materiality of it I object to, and every- 
thing else in this statement except the value of this land. 

The Court: Anything else I will exclude. 

Mr. O’Conor: Yes, that is all we are thinking our- 
selves incompetent. 

The Court: Yes. And of this exhibit that has no bear- 
ing, contains no statement with reference to the value of 
the land, I would exclude without any further discus- 
sion. 

3135 Mr. O’Conor: Now the date of this Exhibit ‘‘36’’ is 
October 26, 1909. Now this is the way it reads, ‘‘How 
many acres of coal do you own? A. 23,400 acres. How 
many acres of surface land do you know? 2100.’ 


692 


The Court: Well, that is irrelevant. 

Mr. O’Conor: ‘‘What is its value per acre? One 
hundred to 250 per A.’’? Now our contention in regard 
to this is it was made on October 26, 1909, and it is too 
remote. Simply a general statement here without any 
reference to any land and is made some years, some nine 
years almost— 

The Court: You cannot raise that question in view of 
Mr. Butters’ statement that it does not concern this land. 
I have admitted the proof because he said he made no 
objection to the foundation. 

Mr. O’Conor: No, no. 

The Courr: Just ran to the competency of it. 

Mr. Burtrrers: That is all that I wanted to assert to 
the court. 

The Court: The materiality of it. 

Mr. Burrers: Simply in that connection I made the 
objection, there is no reason why it should not be sus- 
tained. ‘There isn’t any authority in this wide world 
that would let us prove the value of the land nine years 
afterwards, and if there isn’t there isn’t any authority 
to allow them to disprove it. My objection—probably I 

3136 ought to let somebody else object. 

Mr. O’Connor:. I didn’t understand Mr. Butters’ ob- 
jection in that spirit, your Honor. 

The Court: Sir? 

Mr. O’Conor: I didn’t understand the objection in the 
same light the court did. 

The Court: Well, the record shows what he said. 

Mr. Butters: What does it show I said? 

The Court: You may proceed with your argument. 

Mr. O’Conor: Well, that is all there is to it so far as 
J am concerned. 

The Court: Objection overruled. Call in your jury. 
The statement with reference to the land you may read. 
the balance I will exclude. 


3137 


693 


Mr. CuiperrieLtp: Very good. I may read the date? 
The Courr: Yes, you may read the date. 

Mr. Curperrretp: And I suppose the signature? 
The Courr: Yes, sir. 

(Whereupon the jurors resumed their places.) 
Mr. O’Conor: What exhibit is that? 

Mr. CureerFiretp: Exhibit ‘‘36.’’ 


La Sats, Iniivors, October 26, 1909. 
@. How many acres of surface land do you own? A. 
2100. 
Q. What is its value per acre? A. $100 to $250 per 


acre, 
La Saute County Carson CoaL Company, 


By H. 8. Hazzn, 
Treasurer.’’ 


Amos R. Brockway, a witness for defendant, being sworn, 
testifies as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Amos R. Brockway. I live in, Joliet and 
have resided there 35 years. Am engaged in the livery 
business. I live on Hurtmore street. I reside four miles 


3138 from the controlling works of the Sanitary District. I 


have been acquainted with the Desplaines River all my 
life. Am 55 years of age. Before the year 1900, you 
could walk across the Desplaines River in lots of places. 
I could not state positively its width but below the old 
dams that used to be there it would be 250 feet, some- 
where along there, below Jefferson street. 

Q. I don’t want to get into the city yet, I want to 
keep up above where the Sanitary District went in. A. 
All right. 

At the point that is called the basin it would probably 


s 


694 


be 300 feet wide. At that point before the Sanitary Dis- 

3139 trict was opened the Desplaines River was not over 150 
feet long. In dry weather it was very low. During the 
last eight or ten years with reference to the stream car- 
rying more or less water there isn’t any material differ- 
ence. It might be a few inches. I don’t think there is 
any material difference. I understand you refer to the 
old river above the point where the Sanitary District 

3140 channel comes in. I know where the Sanitary District 
channel comes into the Desplaines River. It is at the 
Lockport controlling works. I have seen them from 
time to time. 

The most water I ever saw going over the Bear Trap 
dam was eight or ten inches. All the water that comes 
through the controlling works enters into the Desplaines 
River basin. It then flows through Joliet and is found 
at Robey street bridge. Below that point the river nar- 
rows a little over 200 feet wide. There are concrete walls 

3141 on each side and between those walls the river flows. I 
see it almost every day. As the water flows in the chan- 
nel containing the Desplaines River and the Sanitary 
District waters it is not over two and one-half to three 

3142 feet deep. It does not flow over two miles and one- 
half an hour. At that point all the water which is 
discharged from the Sanitary District channel and all 
the water which is contained in the Desplaines River 
flows through. From that point it goes on down to the 
Desplaines. 

I have been to the point where the Desplaines and Kan- 
kakee unite since 1900 on several occasions. I have seen 
the Kankakee River just above where it unites. The 
Kankakee River is the largest stream. Just below the 
point where they come in, the Illinois River is from 
three to five feet deep and maybe 500 feet wide. Just be- 

3143 low the point of junction since 1900, there has been a 


695 


difference of between seven and eight inches in the Ih- 
nois River. 


Cross-Examination by Mr. O’Conor,. 


Where the river has been restricted from 400 feet to 
3144 250 feet at Joliet it has not deepened the water there. 
It runs through faster. It has not deepened it two to 
four inches. There is two or three inches difference 
from what there was in former years. I don’t know 
3145 how much water is turned down into the Desplaines 
by the Sanitary District of Chicago on account of the 
spillway at Lyons, or how much of that water goes into 
the Kankakee at or near its mouth. I could not deter- 
mine how much water there is in the Sanitary District 
by taking gauge readings at the Sanitary District dam 
and taking gauge readings at the Desplaines River. You 
might know how much water goes over the bear trap 
dam but you wouldn’t know how much water came into 
the river below, you couldn’t measure that. It does not 
3146 flow regular every day. I never measured the water 
flowing over the Bear Trap Dam. I know it is measured. 
If you take and measure the flow over the Bear Trap 
Dam and the flow of the Desplaines River, you would not 
know the difference in the aggregate flow by simply 
adding the figures together at that point. If you knew 
3147 the flow of the Desplaines over the Bear Trap Dam, by 
deducting the Desplaines flow from the total flow you 
would know what was coming from the Sanitary Dis- 
trict. 
Below the Bear Trap Dam the valey at places is quite 
wide and others it runs very narrow. 
I never testified for the Sanitary District before. I 
3148 have no feeling in this law suit. I came to Ottawa last 
night. I went to the Clifton House and met a whole 
lot of people I didn’t know. I went to room 214. There 


696 


wasn’t any maps or plats in that room. I have no objec- 
3149 tion to answering your questions. 
The flow of the Desplaines has increased during the 
last ten years. I couldn’t tell how much. I know that a 
tremendous lot of territory has been drained into it. 
3150 Through Joliet it has increased two to three inches; it 
3151 is not as wide as it used to be. The Desplaines flows 
in about 18 miles below Joliet. The water from the dam 
goes into the Desplaines a short distance below the dam. 
I go down to the river there at the bridge at Joliet. 
I said the increase had been about two or three inches 
3152 and the places I mean where it goes faster is where 
the stream itself has been narrowed. A lot of places 
where it has not been deepened, where they had dredged 
if sous. 


Frep Hawtey, a witness for the defendant, being sworn, 
testifies as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Fred Hawley, I reside at Pekin, Illinois. 
I am a licensed engineer and river pilot. Age 37. £ 
was born between Hennepin and Peru on a canal boat. 
I have been on the river ever since. I have been boat- 
ing between Chicago and Grafton; done most of it on the 
Mississippi and done some of it on the Illinois. I have 
boated on the Illinois and Michigan Canal. 

In a general way I have boated on the Jack Robin- 

3154 son, City of Henry, Peerless, Niagara and Joliet. It 

would take quite a while to name them all. I have been 
on most of the river boats around here. The William 
Wallace of Joliet. 

I know the Illinois River in the vicinity of La Salle. 
I know where the coal lands are just at the edge of 
La Salle. 








697 


[I knew the high water in the Llinois. River in 1900 
and the bottoms opposite Peru and La Salle. I have seen 
the lands when they were overflowed opposite Peru. Dur- 

3155 ing the last eight or ten years I have worked on the 
river as pilot and engineer. I know a boat by the name 
of City of Henry. I ran that boat in 1906 and 1907. 
I know the bars in the Illinois River above the Henry 
3156 lock. Six years ago in August I was aground there 
and lay there 26 hours. Captain Swain came up with a 
erew and helped put the barge off and came up after- 
wards with a steam boat and helped pull it off with a 
line. The pilot of the boat was Mark Houston. 

I was boating there then. Our boat drew four feet 
eight at the stern and four feet. at the bow. 

I have observed the current in the Illinois River since 

3157 1900. The current is about three miles an hour. Before 
that there wasn’t any current at all. Since 1900, I have 
had an opportunity to observe the stages of water in 
the Illinois River and compare it with the stage of water 
before that time. Since that time there has been a differ- 
ence of about a foot of water. I go by the Henry Dam. 
Twelve inches is my opinion. I had an opportunity to 
observe the rainfall during the last ten years. 


3158 —  Cross-Examination by Mr. O’Conor. 


Prior to 1900, the water flowed over the Henry Dam 
in low water. Five years ago I was in Henry laying 
there and the water was about the same. I should judge 
a foot of a fall there. Before 1900, they put flash boards 
on the dam. I saw them before 1900. Put there to hold 
the water up. I should judge there would be about a 
foot of difference in the fall of the water. The flash 
boards were about 12 inches. They have not been used 

3159 at the Henry Dam in the last six or eight years. 


698 


I could not. tell how much water is going over the 
Henry Dam at the present time. About five years ago 
there was about a foot difference, a foot in the fall. I 
was not there in the summer. In 1911, there was a fall 
there at that time but I don’t remember just how much 
it was. I know we had to lock through, everything had 
to lock through. My judgment is as to how much the 
Illinois River has been raised in the last ten years is 
based on my experience at the Henry Dam. I was not 
there last year; I was there the year before. I cannot 

3160 say how much we had to lock through. 

I should judge the Henry Dam is about 12 feet wide. 
I don’t know how wide the bridge is at Peru or the river 

3161 at La Salle. J should judge it was 400 feet wide. 

3162 Mr. Cureerrretp: I want to offer in evidence a certi- 
fied copy of the map of the Partridge Drainage and Levee 
District of Woodstock County, certified by the clerk of 
the County Court of Woodstock County, with the seal of 
the court attached and I will ask to have it marked as 
an exhibit. 

(Said document was thereupon marked Exhibit ‘‘40.’’) 

Mr. Cuieerriztp: I was to offer in evidence a certified 
copy of a map of the East Peoria Drainage and Levee 
District in Tazewell County, certified to by the county 
clerk of Tazewell County, with the seal of the court at- 
tached thereto, and I will ask to have it marked as an 
exhibit. 

(Said document was thereupon marked Exhibit ‘‘41.’’) 

Mr. CuHiperrirtp: I want to offer in evidence a certi- 
fied copy of the map of the Spring Lake Drainage and 
Levee District in Tazewell County certified to by the 
county clerk of Tazewell County with the seal of the court 
attached thereto and I ask to have it marked as an ex- 
hibit 

(Said document was thereupon marked Exhibit ‘‘42.’’) 


699 


Mr. Curprerrirtp: I want to offer in evidence a cer- 
tified copy of the map of the Lacey Levee and Drain- 
age District in Fulton County, certified to by Austin 

3163 Onion, clerk of the County Court of Fulton County, with 
the seal of the court attached thereto, and I will ask to 
have it marked as an exhibit. 

(Said document was thereupon marked Exhibit ‘‘43.’’) 

Mr. Curperrietp: I want to offer in evidence the cer- 
tified copy of the plat of the Coal Creek Levee and Drain- 
age District in Schuyler County, certified to by the county 
clerk, Isaac C, Lewis, with the seal of the court attached 
thereto, and I will ask to have it marked as an exhibit. 

(Said document was thereupon marked Exhibit ‘‘44.’’) 

Mr. CuHriprerFieLp: I want to offer in evidence the cer- 
tified copy of the plat or the map of the Crane Creek 
Drainage and Levee District of Schuyler County, Illi- 
nois, certified to by Isaac Lewis, clerk of the County 
Court, with the seal of the court attached thereto, and 
I will ask to have it marked as an exhibit. 

(Said document was thereupon marked Exhibit ‘‘45.’’) 

Mr. CuiperFieLD: I want to offer in evidence the cer- 
tified copy of the map of the Magee Creek Levee and 
Drainage District of Pike County, Pike and Brown Coun- 
ties, certified to by William 8. Binns, clerk of the County 
Court, and the seal of the court attached thereto and I 
will ask to have it marked as an exhibit. 

(Said document was thereupon marked Exhibit ‘‘46.’’) 

3164 Mr. Curprrrirtp: JI want to offer in evidence a cer- 
tified copy of the map of the Scott County Drainage 
District in Scott County, Illinois, certified to by J. R. 
King, clerk of the County Court of Scott County, with 
the seal of the court attached thereto, and I will ask to 
have it marked as an exhibit. 

(Said document was thereupon marked Exhibit ‘‘47.’’) 

Mr. Currerrietp: I want to offer in evidence a cer- 


700 


tified copy of a map of the Big Swan Drainage and 
Levee District in Scott County, Illinois, certified to by 
J. R. King, clerk of the County Court of Scott County, 
with the seal of the court attached thereto, and I will 
ask to haye it marked as an exhibit. 

(Said document was thereupon marked Exhibit ‘‘48.’’) 

Mr. Curperrretp: I want to offer in evidence certi- 
fied copy of the plat of the Hill View Drainage and 
Levee District of Green County, [linois, certified to by 
Thomas D. Doyle, county clerk of the County Court of 
Green County, with the seal of the court attached thereto 
and I will ask to have it marked as an exhibit. 

(Said document was thereupon marked Exhibit ‘‘49.’’) 

Mr. Curperrretp: I want to offer in evidence certi- 
fied copy of a map of the Hartwell Drainage and Levee 
District, in Green County, certified to by Thomas D. 

3165 Doyle, clerk of the County Court of Green County, with 

the seal of the court attached thereto, and I will ask to 
have it marked as an exhibit. 

(Said document was thereupon marked Exhibit ‘‘50.’’) 

Mr. CurprrFreLtp: I want to offer in evidence certi- 
fied copy of the map of the Keats Drainage and Levee 
District of Green County, Illinois, certified to by Thomas 
D. Doyle, clerk of the County Court of Green County, 
with the seal of the court attached thereto, and I will 
ask to have it marked as an exhibit. 

(Said document was thereupon marked Exhibit ‘‘51.’’) 

Mr. CurrerrireLp: I want to offer in evidence certi- 
fied copy of a map of the Eldred Drainage and Levee 
District in Green County, Illinois, certified to by Thomas 
D. Doyle, clerk of the County Court of Green County, 
with the seal of the court attached thereto, and I will ask 
to have it marked as an exhibit. 

(Said document was thereupon marked Exhibit ‘‘52.’’) 

Mr. CurperFreLp: [I want to offer in evidence certi- 


701 


fied copy of a map of the Nutwood Drainage and Levee 
District in Jersey County, Lllinois, certified to by John 
C. McGrath, clerk of the County Court of Jersey County, 
with the seal of the court attached thereto and I will 
ask to have it marked as an exhibit. 
(Said document was thereupon marked Exhibit ‘‘53.’’) 
3166 Mr. Curprrrigrtp: I want to offer in evidence certi- 
fied copy of a map of the Mauvaise Terre Drainage and 
Levee District of Scott County, Illinois, certified to by 
J. RK. King, clerk of the County Court of Scott County, 
with the seal of the court attached thereto, and I will 
ask to have it marked as an exhibit. 
(Said document was thereupon marked Exhibit ‘‘54.’’) 
Mr. CuiperrigeLp: I want to offer in evidence certified 
copy of the map of the Coon Rod Drainage and Levee 
District in Morgan County, Illinois, certified to by C. A. 
Bowen, clerk of.the County Court of Morgan County, 
with the seal of the court attached thereto, and I will 
ask to have it marked as an exhibit. 
(Said document was thereupon marked Exhibit ‘‘55.’’) 
Mr. CuirerrieLtp: I also want to offer in evidence cer- 
tified copy of the plat of Coal Creek Drainage District 
of Marshall County, Illinois, certified to by Thomas A. 
Connell, clerk of the County Court of Marshall County, 
with the seal of the court attached thereto, and I wry 
ask to have it marked as an exhibit. _ 
(Said document was thereupon marked Exhibit ‘‘56.’’) 
Mr. Cuiperrietp: I want to offer in evidence certified 
copy of the plat of the Otter Creek Drainage District, 
in Fulton County, Illinois, certified to by Austin Onion, 
3167 clerk of the County Court of Fulton County, with the 
seal of the court attached thereto, and I will ask to 
have it marked as an exhibit. 
(Said document was thereupon marked Exhibit ‘‘57.’’) 
Mr. Curreerrietp: And finally I want to offer in evi- 


3168 
3169 
ol70 
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3173 
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3176 
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3178 
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3182 
0183 
3184 
3185 
3185 
0187 


702 


dence certified copy of the plat of Hagar Slough and 
Drainage District, in Cass County, Llinois, certified to by 
Leo Schyles, clerk of the County Court of Cass County, 
with the seal of the court attached thereto, and I will ask 
to have it marked as an exhibit. 

(Said document was thereupon marked Exhibit ‘‘58.’’) 

Mr. Curpsrrietp: Each of these certified copies of 
maps I offer in evidence in connection with the testimony 
of the witnesses. 

Which said maps marked Exhrbits ‘‘39”’ to ‘58,’ 
both inclusive, are in the words, figures and characters 
following, viz.: 


EXHIBIT °°39.7? 
Hixutsit ‘‘40.’’ 
Eixutrsit ‘*41,’’ 
Hixursir ‘‘42,’’ 
Exxurpit ‘*43.’’ 
Eixuterr '°44,’? 
HXHTBIT) -°40. 
Eixurpit ‘‘46.’’ 
~ Exuterr ‘‘47.”? 
Exursit ‘48.’ 
Exxuisir ‘‘49,’? 
Exxursir ‘‘50.’’ 
Bixatrerr “51,7? 
HixXHIsrr so2e 
Eixutsit '°53.? 
Hixuretrt -‘'54,??’ 
Hxieriscda. 2 
Eixuisit ‘‘56.”’ 
Exuisir ‘‘57.’? 
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703 
3188 Mr. O’Conor: We object to that. 


The Courr: I think-I will overrule the objection. 


Whereupon an adjournment was taken to nine o’clock 
November 27, 1912. 


3189 November 27, 1912, 9:00 a. m. 


Court met pursuant to adjournment. 


MicHaEL Cowan, a witness for the defendant, being sworn, 
testifies as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Michael Cowan, I live in Joliet. I formerly 
was a boat man. I have had about four years experience 
on the Illinois River between St. Louis and Chicago in the 

3190 position of Captain. In a general way the boats which I 
have run on the Illinois River have been the Canal Steam- 
er Niagara, the Peerless and the Imperial. 


I am familiar with the whole stream and am acquainted 
a little around Lockport. I know the Bear Trap Dam 
and I am acquainted with the Desplaines River above 
that point about as far as Willow Springs, 16 miles above 
Lockport. Before 1900, the Desplaines River, I have seen 
it so you could walk across it in places in Lemont there. 
In some places it would be seven or eight feet deep and 
some places would be a foot of water and some places you 
3191 could walk across, maybe six inches of water. In the 
last eight or ten years I have seen the same stretch above 
the Sanitary District Dam and there has been somewhere 
in the neighborhood of about two feet of water on account 
of the drainage around there through the country putting 
it into the river, digging ditches and one thing and an- 
other and draining most of it. 


704 


The Sanitary District water enters the Desplaines Riv- 
er at Joliet and then the Desplaines River flows through 
the City of Joliet. Before the opening of the Sanitary 
District channel the Desplaines River where it flows 
through the City of Joliet, I should judge was 350 or 375 

3192 feet wide. It is not that wide now. They have built a 
wall between the river and the canal and that leaves the 
Desplaines River in the narrower portions of Joliet 220 
or 225 feet wide. The walls are 15 or 16 feet high. The 

3193 river passes between the walls carrying the natural flow 
and the water from the drainage. 

3194 I know the controlling works, have been over there six 
or seven times since they were opened. There was water 
flowing over the dam. The last time I was there it looked 
to me to be only four or five inches going over, something 
like that. 

3195 In the narrow places in the river which I have deseribed 
there is maybe two feet or a foot and a half of water. The 
current is about a mile to two miles an hour. The water 
runs right down through the Desplaines River into the 
Illinois River. The Illinois River is formed by the Des- 
plaines, the Kankakee and the Du Page. The Du Page 
comes in about a couple of miles below Channahon, a cou- 
ple of miles between that and the Kankakee. The Du 
Page River empties into the Desplaines and then goes 
into the Illinois River. The Du Page empties into the 
Desplaines River I should say about two miles and a half 
this side of the head of the Illinois River. They all go 
into the Illinois River there. 

Where I have seen the Du Page River, it is quite a large 
river, that is through Channahon; a couple of feet wide 
in some places and others it ain’t over 75 or 50 feet. 

I have seen where the Desplaines and Kankakee unite. 

3197 The Kankakee is a very large river, measures about 
four or five hundred feet wide at the head of the Illinois 


705 


River. The Kankakee River is a good deal larger than 
the Desplaines River and the two rivers where they come 
into the head of the Illinois River, they narrow up pretty 
narrow; I don’t believe they are over 150 feet wide. I 
couldn’t tell how deep they are at that point, looks to be 
‘ four or five feet deep along there. Just below where the 
Illinois River is formed at times it is two or three feet 
deep in places. 
3198 When the Sanitary District was opened I was down at 
Henry, Illinois. I looked to see if I could see the Chicago 
3199 water in there. I continued to look for months after but 
did not observe a particle of difference whatsoever. No 
change in the river. 
I have known the Illinois River before 1900 and since. 
The following day after they let the water in I noticed 
the Illinois River cleaner and clearer than any time be- 
fore or since. That is I could see down in the water far- 
ther. Before 1900, at a low stage I noticed, two or three 
3200 years before they let the drainage in, that the Illinois 
River had a little more water in it. Since 1900, with ref- 
erence to the level of the river at low water, as compared 
with it before I have noticed a difference of about five or 
six inches. I notice there is more current now than at the 
time before the drainage was in. I should judge present 
current at medium stage of water is a half or three-quar- 
ters of a mile or a mile an hour. It is a mile faster now. 
3201 The current now is maybe a mile and a half or two miles 
an hour. 


Cross-Examination by Mr. O’Conor. 


I think the water is running about twice as fast as it did 
prior to 1900. The way I look at it they have got it diked 
up and narrowed up and the railroads have filled it in 
here and there and caused this current to be stronger and 
more water going in from the drainage all along down the 


706 


Illinois River. I should think the drainage down south of 

3202 the Henry Dam, farther down than the Henry Dam, 
would affect the Illinois River at La Salle some. The 
Henry Dam I think is seven or eight feet high. There is 
another dam about Copperas Creek that holds the water 
back so there isn’t seven or eight feet fall. | 

3203 Henry Dam from the bottom to the top on the lower side 
I should judge is six or seven feet, somewhere in there. 
I am giving my best judgment. The width of the crest of 

3204 the dam is five or six hundred feet. 

I am acquainted with Captain Donovan. I have known 
him 25 or 30 years. 

With reference to my testimony in this law suit my 
attention was first called to these matters yesterday. They 

3205 asked me what I knew and I told them as near as I could, 
but yesterday was the first time that anything was ever 
said to me that would require me to fix anything in detail 
as to what I have testified. We talked it over among our- 
selves. 

Lemont is the first place I ever walked across the Des- 
plaines River. It is about 13 miles from Joliet. I was 
up the Desplaines River about a year ago, it was along in 
the fall. The water was higher then than in the summer 
time. 

3206 I have seen the ditches dug out there that they are put- 
ting in around there. Nothing was said to me yesterday 
on the subject of drainage ditches. 

I have seen the water low at Lemont in 1903, but not as 

3207 low as I had seen it before that. At Lemont the river is 
about 150 feet wide. J have seen it after that. I have 
seen it here last summer around Lockport. Last summer 
was not an extra dry summer. Some places we had as 
much rain as we ordinarily do and some places we did 

3208 not. I think the water was about the same last year dur- 
ing the dry months that it has been this year or in the 


107 


years 1909 or 1910. I think the Desplaines River is a 
foot and a half to two feet higher at a low water stage. 
3209 I don’t know whether prior to that time I testified about 
there was a rain. I noticed that there was more water 
in the river than at any time I had seen it before. The 
Sanitary District people narrowed the river through Jol- 
iet for about half a mile. Before that time it was 350 or 
360 feet wide. After they got through it was 220 to 225 
3210-13 feet wide. Where the Sanitary District constructed 
these retaining walls it is not as deep now. The stream 
3214 was deeper. He asked me how much water there was 
in the drainage ditch and I told him two feet or two feet 
and a half. There is more water coming down the Des- 
plaines River, I think there is more water coming down 
3215 the river now than there was before. 
3216 I never took any measurements of the Sanitary District 
at Lockport. The Bear Trap Dam might be 100 feet or 
3217 200 feet, I am simply giving my estimate. I would not 
want to bind myself within 50 feet. The last time I saw 
it was two or three years ago. I don’t remember the 
3218 month. I was over there several times after it was in 
operation to see it running and look around up there. The 
largest amount of water I ever saw flowing over that dam 
was in the neighborhood of six or seven inches of water, 
3219 along in there. I don’t know the number of cubic feet. 
I don’t know the number of cubic feet that two and a half 
feet of water passing over would be. I don’t think I ever 
saw a foot of water flowing over the dam. I have seen 
water leaving the Sanitary District at the power house, 
but I think that was about two years ago. 
Where the Sanitary District water and the Desplaines 
flow together about a mile below the power house, the 
3220 width of the stream is about 300 to 350 feet. I don’t 
3221 know the quantity of water flowing over the dam or the 
amount of water flowing in the Desplaines River. I think 


708 


the Desplaines River is flowing pretty near as much as 
the drainage is, that is flowing as much water. That is 

3222 my best judgment. I never took any gauge measure- 
ments to determine that or determine whether the Kanka- 
kee has increased over the flow prior to 1900. 

At the junction of the Kankakee River and Desplaines 
the river is four or five hundred feet wide. I saw it last 
summer in July. At that time I don’t know how much 

3223 water was going over the Bear Trap Dam. 

At Henry I have noticed a difference of four or five 
inches. There has not been much of an increase. I no- 
ticed the river as I said two or three years before the 
drainage was let in and we had a little more water. There 
was maybe three or four inches more water then. 

3224 I will tell you how I used to do this in low water. We 
used to load those boats with what we could get down the 
river safely with and not get aground, and the place we 
used to load, as Henry or Chillicothe, or anywhere we 
loaded, we used to mark on the spiles to keep tab on the 
water, to see if it was raising or falling, to see how much 
water was on the bars and how we could load for it. If 
there was five feet of water we would load four feet and 
a half or four feet eight; have two or three inches to spare. 
And in doing that we noticed we could load two or three 
inches deeper before the drainage was let in, on account 
of the river holding up and of course we didn’t know ex- 
actly what done it at the time, but it was on account of this 
drainage coming in. We loaded the barges at Henry, 
Peru, Lacon and Hennepin. We loaded about the same 

3225 since 1900 as before. Before 1900, we used to load our 
boats and go over those bars in water two or three inches 
deeper, but since the drainage is in I should say we have 
got maybe four or five inches more. There is a difference 
of a few inches. I judge by the bars at Henry, Pekin, and 
along down that way. The bars are not located at any 


709 


one certain place. There is very little change in them. 
They are sand bars. High water does not affect them. 

3226 The increased current I suppose in the last few years 
has kept them out a little bit more. It keeps the channel 
cleaned out more. We can tell whether the increase in the 
water is due to the fact these sandbars are swept away 
because when we get down to a certain stage we measure, 
going across these bars, take a stick and go along and 
measure; have marks up to six feet. I have done that. 
From my observation during all the time from 1900, 
I have noticed an increase in the general stand of the 

3227 river; I should say about six or seven inches, something 
like that. | 

I don’t know when I first noticed the Chicago water 
after the drainage was turned in. The way I know the 
water was turned in there was some fellow there in Hen- 
ry showing people down there about the Chicago water, 
24 hours after it was turned in, and I went up on the 
bridge where they were talking and this fellow was preach- 
ing that you could see the Chicago water and I said how 
long since it was put in and he said 24 hours, and I said 
the water couldn’t get down there that quick. After the 
Chicago water was turned in I was waiting to see it and 
it was two or three months, along in the summer, before 
I noticed it. I could tell it was Chicago water because it 

3228 cleared the river up. Prior to that time the river was 
dirty. Maybe it was along in May or June. It was turned 
im in January. 

The man that I was talking about was talking in Jan- 
uary at Henry. I noticed the effect some time in June or 
July. 

3229 The way I looked at it there, I had some wires in a 
wheel, the propeller wheel, between the bearing and the 
wheel, and it binds the engine. And I says to the engi- 
neer I had better get a skiff and we will go down there 


710 


and see if we can pull that wire out of there. And going 
down the river, something I never seen since the drainage 
was in or before, I could see the shaft about 18 inches in 
water and this wire in there and we took it out and I said, 
‘<T here is the Chicago water. There is the lake water for 
you. It is clear.’’ I knew it was Lake Michigan water. 


The point where our boat was standing in the river was 

3230 about eight feet deep. I could not tell you what percent- 

age of the water was Chicago water. I could not tell you 

what percentage of Lake Michigan water it takes when 

you put it in the Illinois River to make the water look like 

Lake Michigan. I could not say whether it would be 10 or 

20 or 50 per cent. I could not tell you whether the change 

3231 in condition was confined to the point where I made the 

observation. I could not tell you whether it was peculiar 

to the ten square feet of water I saw. I would not say it 

was. I would think that was a general condition existing. 

3232 I cannot answer the question how much percentage it 
would take. 


3233 I don’t know anything about the spillway at Lyons ex- 
3234 cept what I have heard. Not knowing anything about 
the spillway at Lyons only just what I see around Lemont 
and Lockport, those ditches going in there, I should judge 
maybe cause that Desplaines River and the water to be a 
foot and a half or two feet. I don’t know anything about 
3235 the amount of water coming from the spillway and only 
know what is carried in by the tile drains as I look at the 
river. I don’t know the percentage of increase. I am only 
in a position to say where the increase of the Desplaines 
3236 River comes from as I have seen the river. I had no 
percentages. I know it is two feet or two and a half more 
water init during low water. I don’t know where it comes 
from, only some of those ditches along there. I think 
there is two feet or two and a half feet more water in the 


711 


Desplaines River today at low water mark than there was 
during the year 1900, at low water. I don’t mean inches. 

They used to run boats years ago on the Desplaines to 
Joliet. They do it now on part of it. 

3237 Prior to the turning in of the water from the Sanitary 
District the speed of the river was about a mile an hour 
in low water. I should judge now it is two miles. I sup- 
pose narrowing it and everything like that gives it more 
current, being so much stronger would flow through with 
a strong current, and those ditches, and narrowing it. 

3238 The fact the channel is narrow at Peru would tend to 
back the water up along that land here, along that land 
that lies above Peru. The river has been narrow at Peru 

3239 within the past ten or twelve years. The ‘‘Q”’’ railroad 
put in a lot of stuff there. I could not tell when. I have 
seen them putting dirt in there. About eight or nine 

3240 years ago I seen them putting it in. Put it all along 
shore, put the dirt out in the river, dumped it down in 
the river. I couldn’t tell you exactly how much the river 
was narrowed at Peru eight or nine years ago, exactly 
how much it was, but I have seen the stuff rolled down the 
river there. I have been unloading lumber there just 
above the bridge. 

Where the bridge crosses the river it is 300, maybe 400 
feet wide. Where the Shippingsport bridge crosses the 
river in low water I should judge it is four or five hundred 

3241 feet wide. I don’t remember the old bridge that crossed 
the Illinois River at Shippingsport. The bridge at the 
present time I know, I put stone around the abutments 
there where it was washed out; it was 16 or 17 years ago, 

3242 during low water. I don’t remember the piling along 
there that used to stick up above the surface of the water 
a foot or two feet and a half. I went up there with a boat 
and I was notified to keep away from some piling that 
was in there. I have a canal boat. At the time they put 


Le 


the bridge across there for the ‘‘Q’’ I boated some lumber 
from Chicago up there. I never was up around that way 
with a boat, with a big boat before, and a man came to me 
and told me which way to go. Of course I had an idea 
anyhow from the water, but he told me where to keep 
away, to keep over on, I believe the right hand side, what 

3243 we call the starboard side going up. I did not observe 
any piling sticking above the surface of the water prior to 
1900. 


I made my calculations as to the velocity up the river at 
places there at Peru. Peru and anywhere that the river 
is narrowed up to have more current. J made observa- 
tions at Peru, Illinois, and anywhere along down near the 
mouth of the Illinois River. I should say there is more 

3244 current. There is a greater body of water. My opinion 
is the current in the Illinois River at Peru is greater than 
it was before 1900 and other places where it is narrowed 
up the same way. Where the width is about the same the 
conditions generally are about the same. 


Caprain WituiaAmM H. Watuacz, a witness for the defend- 
ant, being sworn, testified as follows: 


Direct Examination by Mr. Chiperfield. 


My name is William H. Wallace. I reside at Henry, 
Illinois. My business is boating, managing a line of boats 
on the Chicago River, Illinois and Michigan Canal, Ili- 
nois River and Mississippi River. Have been engaged in 
the boating business since I was old enough to work. I 
am now 54 years old. I have been a master since 1880. I 
have seen a good deal of the Illinois River in that length 
of time. 


I am acquainted at Lockport. I have known the Des- 








713 


plaines River at Lockport for a considerable time. I 

3246 know the location of the Sanitary District works. 

Prior to 1900 in the Desplaines River in the summer 
there was not very much water in it, very shallow. At 
the same point there has been a difference since 1900, 
there is more water up there. I never measured it, but 
looking at it I should judge it is two feet higher. 

3247 When I have seen the Bear Trap Dam there would be 
four or five inches, sometimes a very little going over, 
and some going out of the gates. It went into the Des- 
plaines River, I saw where it entered. It goes down to 
Joliet and into the Desplaines River. 

3248 Ihave seen the Desplaines River in the narrow sections 
in Joliet. Before 1900 the Desplaines River was where 
the Illinois and Michigan Canal is. The Canal Company 
put in dams and made pools. That was in part of their 
canal through Joliet, they flowed together. The canal and 
river were afterwards separated by a coffer dam or crib. 
After they were separated it left the Desplaines River 
about 200 feet or a little better, wide in Johet. Since that 
time I have seen the Sanitary District’s water and the 
natural water of the Desplaines flowing through that chan- 
nel through Joliet in those narrow portions. It is not 
very deep, probably two or three feet. It is very shallow, 
you can see it jumping over the rocks. Couple of miles 
an hour flow. | 

3249 They meet the waters in the Kankakee 16 miles below 
Joliet and that forms the Illinois. I have been at the 
meeting place since 1900. The Kankakee is a good big 
wide stream, 200 or maybe 300 feet wide, before it comes 
in to form the Illinois. The Desplaines is about half the 
width of the Kankakee. When they come together they 
make a stream of four or five or six hundred feet, I don’t 

3250 know how deep the water is in the Illinois across the 
stream just below where they come together. 


714 


I have sailed the Chicago and Illinois Rivers, the I. & M. 
Canal, the Hennepin Canal and the Mississippi River. I 
have sailed on the [Illinois River from La Salle to the 
mouth. Made two or three hundred trips. I observed 
the Illinois River before 1900 and since. 


I heard of the opening of the Sanitary District. The 
night the water was turned in, I was in Joliet. I remained 
there for four or five days and then went to Henry and 

3251 observed the [llinois River upon that occasion at Henry. 
I had a number of boats lying at Henry loading with grain 
and I went down after four or five days to see how they 
were getting along. I looked around to see how much the 
water was raised. I couldn’t notice anything to speak of. 


Since 1900 I have seen the water lower in the lower end 
3252 of the Illinois River than I did in the last 25 years. I 
have observed in the upper portion of the river that there 
is a great deal more current than there used to be. It is 
probably twice as fast as it used to be, or faster. The cur- 
rent was not searcely any current in the olden times in 
the pools above the two dams, the Copperas Creek and the 
Henry. We eall the pools of the two dams where the 
water is backed up by the Copperas Creek and the Henry 
Dam. Since then there has been a great deal more cur- . 
rent, a mile an hour. There was scarcely any before. The 
water was backed up and almost stand. In the narrower 
3253 portions of the stream where the banks came closer to- 
gether, there is more current now than there was before. © 
At the Peoria narrows, the Peoria bridge probably a mile 
and a half. I have noticed that at low water stages since 
1900 there is a little more water. In very low times there 

is I should judge about a foot. 
3254 Ihave had an opportunity to observe the effect of high 
water in the Mississippi River upon the Illinois River. 
I have seen the water backed to Havana. Havana is 180 


715 


miles above the mouth of the Illinois River where it emp- 
ties into the Mississippi. 


Cross-Examination by Mr. Chiperfield. 


_ There has always been high water on the Mississippi 
River at different seasons, different years. My acquaint- 
8299 ance with the Illinois River is somewhat intimate and 
springs from years of contact with the river in and around 
La Salle. I have never been above the bridge in the river 
3206 at La Salle. I never saw the Fred Swain come from La 
Salle to Ottawa, running excursions up and down the river 
prior to 1900. I never knew that. I used to be acquainted 
3207 with the Fred Swain, but she is burned up. There isn’t 
any now. I knew the Fred Swain before it was burned. 
3208 I rode on it probably 15 or 20 times a year. The Swains 
had two or three boats that were sister boats to the Fred 
Swain. The names of those boats were Fred Swain, 
Percy, Verne and Borealis Rex. The Borealis Rex used 
to run between La Salle and Peoria. The boats were of 
3259 similar construction, some side-wheelers and some stern- 
wheelers. Practically all the same size within a few tons. 
The smokestack of the Fred Swain projected higher than 
the top of the pilot box four or five feet. I don’t know 
that the Fred Swain came up the Illinois River prior to 
the year 1900 in the summer time under the ‘‘Q’’ bridge. 
3260 She could not do it unless the water was pretty low. In 
order to come under the bridge without taking the smoke- 
stack down the water would have to be awful low for it 
to go under any time. I don’t know whether they could 
without taking the smokestack down. I don’t know wheth- 
er they could then or not. Since 1901 the Fred Swain 
could not get under the ‘‘Q’’ bridge even by taking down 
the smokestack during low water. The bridge is too low. 
It is not any lower now than 1900. I never knew the bridge 
3261 to be lowered or any change in it. 


716 


You understood me to say just a moment before this 
last question that from my knowledge of the river and 
of the ‘‘Q”’ bridge crossing the [llinois River south of La 
Salle that the Fred Swain with the funnels down could not 
pass under the bridge because the bridge is too low. I 


3262 said the bridge had not been lowered. Could not pass 


under the bridge because it was not built high enough. 


3263 I did not say how much higher the Llinois River is in 


and along La Salle and along that bridge than it was prior 
to 1900. I don’t know. I have an opinion. I base my 
measurements on the Henry Dam where I lived, about a 
foot at Henry, would think about a foot difference in ele- 


3264 vation at the bridge in the Lllinois River near La Salle. 


I came to that conclusion because it was a foot higher at 
Henry. | 

The river at the ‘‘Q”’ bridge is about the same width as 
itis at Henry, 700 or 800 feet. The increase in the rise of 
the river would be about the same in amount at Henry 
as it is at La Salle along the ‘‘Q”’’ bridge. 


3265 I have taken no part in any movement of boatmen to 


compel the ‘‘Q’’ railroad to put in a turn bridge there. I 
have heard of it. 


I was at Joliet when the water was turned in. The 


3266 Sanitary District channel in 1900 was just like it is now. 


They have cleaned out a few bridge piers and a few little 
obstructions. I am pretty familiar with what they have 
done. They have cleaned out the bridge piers so we could 
navigate the channel at Joliet and a few other little things 
of that kind. 

The flow varied in 1900. It was on and off until the gov- 


3267 ernment took hold and made them put the current 


through the Chicago River at a mile and a quarter an 
hour. I do not know that the flow in 1900 in view of the 
fact the Sanitary District was not completed was some- 
times on and off. 


717 


Four or five days after the channel was opened I went 
to Henry. I had some boats loading there. The river 
at Henry was higher than the low water; there was prob- 
ably two or three feet rise January, 1900. I could not 
notice any change while I was waiting ten days. ‘There 

3268 might have been three or four inches change. There was 
a little change. I didn’t see any difference in the color of 

3269 the water at that time. I noticed it the next year. The 
condition of the water was that there was about a three 
foot rise and there was four or five inches after the water 
was turned in. It was the latter part of February, 1900, 
that I noticed by looking at the river, I could see it was 
cleaner, cleared up by the Lake Michigan water. 

The river was inside its banks. It might have been up 

38270 towards the edge. The river was full. I first noticed 
it myself at Pekin. I don’t know how deep the river was, 
my best judgment is ten feet. I thought it had been 

32/1 cleared up, I thought it looked kind of blue. I don’t 
know Lake Michigan water always when I see it. I know 
when the Illinois River is flowing Lake Michigan water 
in such quantities it looks blue, that the water comes from 
the Sanitary District. At Pekin the river is probably 
1,500 feet wide. You could just see a blue cast on top, 
You could not look into it at all. I cannot tell what per- 

3272 centage of Lake Michigan water it would take. It was a 
mathematical problem. How am I going to tell whether 
it was 20 per cent. or not. I haven’t any idea. 

Pekin is about 145 miles from the Bear Trap Dam. The 
water would have to travel that far. I noticed that blue 
cast was all gone shortly after I first noticed it, I can’t 
tell the number of days. It might have been a week or two 

3274 weeks. The blue water disappeared just as soon as it 
commenced to run. It will disappear in twenty minutes 
after a rain storm without any rise in the river. The rain 
will wash the yellow clay off the hills and the water will 


718 


change its color. Never noticed how long before it gets 
back to blue. Saw the blue of the lake at subsequent times. 

3275 Often saw it before rain storms when it has time to settle 
and clear up. I don’t think I noticed it this year. We 
have had a good many rains. I saw it in the Drainage 
Canal Sunday. I last noticed it in the Illinois River last 

3276 winter, about February, 1912, at Henry. The river is 
12 feet deep and seven to eight hundred feet wide. The 
water looked blue on top. 

The waters from Lake Michigan and the Kankakee and 
Desplaines Rivers come together. They all get stirred 

3277 up together. If the larger amount of water is dirty 
water the whole stream is going to show dirty. It will 
for a while but the water will purify itself running. I 
have no idea of the percentage. I don’t know how much 
water comes into this valley from the mouth of the Kan- 

3278 kakee. The Kankakee water is not dirty in dry times. 
It is clear in February if there hasn’t been any storms. 
We used to fill our water barrel out of the Kankakee River 
for drinking purposes about 30 years ago in the summer 

3279 time. We did not fill it out of the Kankakee River in 
February because we did not do any boating in February. 
We used to go up the Kankakee feeder. The Kankakee 
river is a clear stream. It is clear outside of flood times. 
February, 1912, it was a moderate height, it rose some. 
The Desplaines River is not clear water where it mingles 
with the Sanitary District water. Before it is clear. The 

3280 Chicago sewage dirties it up. The Chicago water at the 
Bear Trap Dam discolors the Desplaines River, it is a 
different color. 

3281 I never saw a foot and a half of water going over the 
Bear Trap Dam. The most I ever saw was four or five 
inches. You could see the crest through the water. I 
never saw more than four or five inches. I never was at 

3282 the dam more than two or three times. I saw it shortly 


719 


after 1900. I cannot tell just when, within a year or two. 

3283 Always saw the crest of the dam. There isn’t any water 
flowing over the dam at the present time, they let it out 
at the power house. 

I had no knowledge as to whether measurements are 
taken of the flow at the power house. Exhibit ‘‘20’’ is 
the controlling works. I know there was no water com- 
ing over the dam. I went by there on Sunday and the 
dam was up over the water. They were letting the water 
out at the power house 12 miles below the controlling 
works. They don’t use those gates at all. They let the 
water out of this channel at the power house. 

3284-86 In my judgment the width of the Bear Trap Dam 
is 300 feet. If there was a dam 300 feet wide and there 
was a foot and seven inches of water flowing over it at 
the rate of three miles the hour, I would not want to un- 
dertake to figure the number of cubic feet passing over 
the dam a minute. 

3287 I have no idea how much is coming out of the Sanitary 
District at the present time. I always understood there 
was a means of measuring it at these different power 
houses to determine that fact. I made my calculations 

3288 as to the increased height of the river by certain points 
where our boats run. The increase has been uniform. I 
should say the rise in the level of the Illinois River has 
been practically uniform. 

The river rises faster where it 1s narrower, where it 
is dammed up. There is more current since 1900, twice 
as much as there used to be. I should say there was 

3289 twice as much current at the Peru bridge. I think the 
bridge is about 300 feet wide. The current depends on 
the width a great deal. If the width is approximately the 
same it would flow just the same one place as another. 
The zig-zag irregular condition of the stream would not 
have anything to do with it if it is as wide. The banks 


720 


wash out and would send the water around twice as fast, 
wouldn’t it? The edge of the stream would have to run 
against the bank and come back in that fashion. The 
edge would be all that would touch the bank. The water 
might back the other water up a little, not much. Would 
not think that would have much effect on the actual veloc- 
ity of current itself. 

3291 Went through Lockport last Sunday because I am op- 
erating boats between Chicago and Davenport. I took 
a boat from Joliet to Chicago last Sunday. I never 
worked for the Sanitary District at Lockport taking any 
measurements of the flow or anything of that kind. 


JHARLES KerCHEVAL, a witness for defendant, being 
sworn, testifies as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Charles EH. Kercheval. I reside in Joliet. 
I am a contractor at the present time. I have been en- 
gaged in the building business about two years. Before 
that I was employed by the Economy Light and Power 
Company for three and one-half years, securing right 
of way. 


During the time I have lived in Joliet I have become 
acquainted with the Desplaines River. I knew it before 
the Sanitary District was opened for five or six miles 
above the controlling works on the west side most of the 
way from Willow Springs. I think the channel of the 
Desplaines River then is where the Sanitary District 
channel is now. There is a diversion of the river there. 

During eight or ten years before the Sanitary District 

3293 was opened there was always quite an amount of water 
flowing through the Desplaines River, but not as much 
as there is at present. Since the Sanitary District has 


721 


been opened the Desplaines River varies somewhat. I 
think there is more water than there was a few years 
ago. I don’t know as I could state exactly. My judg- 
ment is from six inches to a foot more water than was 
flowing before. 

The Desplaines River flows through Joliet. I am ac- 
quainted with the narrower portions of the stream. The 
Illinois and Michigan Canal before the Sanitary Dis- 
trict work was completed was in the west part of the 
basin. Now the Desplaines River does not flow with the 
Illinois and Michigan Canal; it is divided by a retaining 

3294 wall on the east side of the canal bank. The distance 
between the retaining walls of the channel proper is in 
the neighborhood of 200 feet, perhaps a little more. The 
Desplaines River and the Sanitary District water flows 
through that channel. The water on an average is in 
the neighhorhood of three feet deep at that point at or- 
dinary low stages. I cannot say how fast it flows. I 

3295 should say two miles to two and a half an hour. I know 
where the Desplaines unites with the Kankakee near 
Dresden Heights; we have been there a good many times 
since 1900. I have seen the Kankakee River as the Des- 
plaines joins it. The Kankakee River is about the same 
width as the [llinois River; I couldn’t state how wide 
The Kankakee was. the largest stream as it and the Des- 
plaines came together, I should say twice as large. 

3296 There is a place in the Illinois River just below where 
it is formed by the Kankakee, Desplaines and DuPage, 
where it is not very deep, places where it is not more 
than four or five feet deep. I have not observed any 
difference in the level of the Illinois River at that point 
since 1900. I am only acquainted with the Illinois River 
from Morris north towards Joliet. 


3297 


722 


Cross-Exammation by Mr. O’Conor. 


I possibly know that there has been millions of acres 
drained in Indiana and up in Wisconsin that have been 
brought down through the Iroquois River, the Kanka- 
kee and the Desplaines, that have increased the height 
of the river there below Kankakee. JI never made any no- 
tation as to the increase or rise. I have been able to 
make an estimate of the increase in the Desplaines River 
along Joliet, the past ten years. There is more water 
flowing there than there was. In all seasons of the year 
there is more water. The only reason I could give for 
that was on account of the farmers drainage that has 
been going on, that flows into the tributaries of the 
Desplaines River. 


3298 I know about the spillway. I have been there but I 


d299 


don’t know where it goes. I don’t know what it was 
built for. 


J. W. Ricuarps, a witness for defendant, being sworn, 
testifies as follows: 


Direct Examination by Mr. Chiperfield. 


My name is I. W. Richards. I reside at Joliet. I have 
no business, I am retired. I was a farmer up to about 
ten years ago, and have resided in Joliet ten years. Be- 
fore that time my home was just outside of the city. 

J have been acquainted with the Desplaines River for 
some years. Since 1866. 


' I know where the controlling works of the Sanitary 


District are. I know where Spring and Hickory Creeks 
are. In 1902, I saw high water in Hickory and Spring 
Creeks. That high water was in the month of June, 1902. 
It was so high and it came down with such a body that it 
ran right down through a part of the City of Joliet. It 


723 


ran south of the high school building which is on fairly 
high ground, and the current was so swift there a man 
could not walk through simply to cross from the high 
school building to the south. And just below there on 
the corner there was a water tank that stood up high 
enough that a horse could drink out of it without being 
unchecked, and it took that tank away and also took the 

3300 stone sidewalk away, carried it right away. There were 
two horses drowned. I saw the flood in the afternoon and 
in crossing on Cass street in a buggy you had to lift 
your feet up to cross the Alton Railroad in the afternoon 
on that day. That flood came up during the night. There 
was no water in the streets the night before and the next 
morning it was there. J don’t think there were any 
street cars run across that crossing that day, probably 
not for two days, I don’t remember exactly. 

3301 The water came from Hickory and Spring Creeks from 
the east. Above the point where the water came from 
there was no connection with the Sanitary District. 

The Desplaines River for ten years before the Sanitary 
District channel was opened a part of the time was a 
very sluggish and slow stream before the river was di- 
verged, and in places where it was diverged for the chan- 
nel, but since then it seems there is more water coming 
down than there was before. I would think there was 
twice as much water. I used to cross that stream in 

3302 1883, ’84 and ’85, about three or four times a day. 
Since then I think it has doubled. 

I have observed the Bear Trap Dam. I have seen it 
on an average twice a year. The last time I saw the 
Bear Trap Dam there wasn’t an ounce going over but 
before that I should judge a foot, probably about a foot 
of water. After it flowed over the dam it went into the 
basin which was connected with the Desplaines River. 

The Desplaines River flows through Joliet. It flows 


724 


3303 between the retaining walls. The Desplaines River at 
the Jefferson street bridge would be about 200 feet wide. 
The waters which go through there are the waters of the 
Desplaines, the tributaries of the Desplaines and the 
Chicago drainage. I never measured the water. I cross 
the Jefferson street bridge there probably four times a 
day the year around and there are certain marks that I 
am going by. I should think it was an average of three 
feet and a half. The current flows about four miles an 
hour in my judgment. It is quite rapid. 

3304 The Illinois River is formed at Dresden Islands. I 
have been there probably not more than half a dozen 
times. J have seen the Kankakee and Desplaines Rivers 
flowing into it since 1900. I have seen where the Kan- 
kakee and Desplaines Rivers come together. At the 
mouth of the Kankakee I have seen what would appear 
to be more water coming from the Kankakee than that 
which went down the Desplaines. After they come to- 
gether since 1900, I have not noticed any difference in 

3305 the level of the Ilhnois River than it was before 1900. 
I don’t know how deep it is. 


Cross-Examination by Mr. O’Conor. 


I cannot answer the question why it does not show at 
the Kankakee that the Desplaines is flowing twice as 
much water as it did before 1900, but you can go down 
to Dresden Heights and watch either one of these streams 
and the Ikankakee seems to be two inches higher, so 
much so that it drives the other back. It drives the 
Desplaines River right to one side, so much difference. 
The Kankakee comes into the Illinois quite a way out- 

3306 side of Joliet. If the flow in the Desplaines River is 
doubled it would naturally seem there ought to be some 
increase. You would have to make some displacement in 


120 


the water if it was doubled. It would naturally make a 
larger body of water if the Desplaines flowed twice the 
amount of water that it did prior to 1909 and you add to 
that flow the water from the Sanitary District. 

3307 I would think that the Desplaines, DuPage and their 
tributaries, with Hickory Creek and Spring Creek, with 
all the other small runs that come in from Lemont, would 
furnish at least half the flow that comes down the chan- 
nel at the present time. If the flow doubled it might have 
some effect upon the Kankakee River, but to watch it 

3308 closely when you are down at Dresden Heights the 
Kankakee seems higher, so much so that it drives the 
other flow to one side down there where they join to 
make the Illinois. I don’t know how much higher. It 
looks now as if it must be two or three or four inches 
higher. I did not measure the Kankakee. I am not com- 
petent to say. I could not say whether there is four feet 

3309 of water in it or not. If there were three feet of water 
in it then and it was four feet higher than the water 
coming from the Desplaines at that point, then there 
would be two feet eight inches in the Desplaines. I don’t 
know how wide the Desplaines River is where it meets 
the Kankakee or how wide both rivers are after they 
come together. If the channel of the Illinois was the 
same size as the charinel of the Desplaines and the chan- 
nel of the Kankakee, and the Kankakee was flowing three 
feet of water and the Desplaines was flowing two feet 

3310 eight inches of water, it would not show in the [llinois 
River if it widened out at the mouth. If it was narrow 
it would show. The Illinois River did not appear to be 
narrower. I think it was a little wider after they come 

3311 together. It was not very much wider than the Kan- 
kakee. 

I don’t know how deep the water is in the Illinois 
River after these two rivers come together. I worked 


726 


for the Sanitary District when they put their channel 
down through Joliet. I was on the witness stand two 
or three times. IJ also placed values on the property that 
3312 they were in litigation about. Testified for them two 
or three times before. Never did any physical labor 
for them. I never took any readings at Lockport. The 
greatest amount of water I ever saw going over the Bear 
Trap Dam was a foot or two feet. I saw a foot at dif- 
ferent times, two or three times. I have not been there 
very many times. I did not go over there for that pur- 
pose, I went there with some friends simply to show the 
3313 dam and did not make any notations. I could see the 
erest of the dam through the water. You could stand 
right up close to it and see the dam through the water. 

In the Desplaines at low water to-day as compared 

3314 with the vesplaines prior to 1900, I think there is a 
difference of over a few inches. It is simply a matter 
of observation. Never made any record as to the flowage 
of the Bear Trap Dam. 

Where the Desplaines joins the Kankakee it runs a 
little to the southwest and the Kankakee comes in from 
the southeast. It might strike it at about a right angle; 
I couldn’t be positive as to that. There might be a slight 
bend just before it enters the Kankakee. 

Mr. CurperFieLtp: Now, I desire to offer in evidence a 
certified copy by the Secretary of State of the State of 
Illinois of an order from the governor, John R. Tanner, 
to the Board of Sanitary Trustees of Chicago, dated 
January 17, 1900, permitting the opening of this channel. 


Whereupon said document was received in evidence by 
the court, marked Exhibit ‘£59’ and is in words and fig- 
ures following, to-wit: 


3316 


3317 


(27 


Bixee 6259; 7? 


‘‘Srate oF ILuinots, 
DEPARTMENT OF STATE, 


James A. Rose SECRETARY OF STATE 
To All Whom These Presents Shall Come, Greeting: 


I, James A. Rose, Secretary of State, of the State of 
Illinois, do hereby certify that the following and hereto 
attached is a true copy of a letterpress copy of a commu- 
nication from John R. Tanner, Governor, to the Board 
of Sanitary Trustees, Chicago Illinois, dated January 17, 
1900, the original of which is now on file and a matter of 
record in this office. 

InN TESTIMONY WHEREOF, I hereto set my hand and 
cause to be affixed the great seal of state. 

Done at the City of Springfield, this 2nd day of De- 


eember, A. D. 1908. 
(Signed) James A. Ross, 


[SEAL] Secretary of State. 


(OrFiciraL Lerrers No. 5) 


January 17th, 1900. 


To the Board of Samtary Trustees, 
Chicago, Ill. 
(Confirming telegram of this date) 
GENTLEMEN: 

The Board of Commissioners heretofore appointed by 
the undersigned to make an examination and survey of 
the Chicago River, and of the Chicago Drainage chan- 

nel, to determine whether the said channel has been 
completed in accordance with the requirements of Sec- 
tion 23 of the Act entitled, ‘An Act to create Sanitary 
Districts, and to remove obstructions in the Desplaines 


728 


and Illinois Rivers,’ approved May 29, 1889, in force 
July 1, 1889, having certified to me that said channel has 
been and is now completed in accordance with the law 
creating said Sanitary Districts. 

Now THEREFORE I, Joun R. Tanner, GOVERNOR OF THE — 
State oF Iuutnors, do hereby authorize and direct you, 
the said Board of Sanitary Trustees, to open and let 
into the said channel, the waters of Lake Michigan and of 
the Chicago River, and the sewerage of said Sanitary 
District, and to use and employ said channel for all the 
uses and purposes for which said channel was con- 
structed. 

IN WITNESS WHEREOF, I have hereunto set my hand and 
seal, this Seventeenth Day of January, A. D. Nineteen 


Hundred. 
JOHN RK. TANNER, 


Governor.’’ 


3318 Mr. CurperFieLp: I desire to offer in evidence a per- 
mit issued by the Honorable Russell A. Alger, Secretary 
of War, approved by General John M. Wilson, Brigadier 
General Chief Engineers United States Army, dated 
May 8, 1899, authorizing the opening of the Sanitary 
Canal and regulating the amount that might be flowed. 
And in that same condition I desire to take leave to with- 
draw the original on substituting a compared copy. 

Whereupon said document was received in evidence by 
the court, marked Exhibit ‘‘60’’ and is in words and fig- 
ures following, to-wit: 


3319 Eixutsit ‘‘60.’’ 


Wueresas, by Section 10, of an Act of Congress, ap- 
proved March 3, 1899, entitled ‘‘An Act making Appro- 
priations for the construction, repair and preservation 
of certain public works, on rivers and harbors, and for 


729 


other purposes,’’ it is provided that it shall not be law- 
ful to alter or modify the course, location, condition or 
eapacity of the channel of any navigable water of the 
United States, unless the work has been recommended 
by the Chief of Engineers and authorized by the Secre- 
tary of War prior to beginning the same; 

AND wHEREAS, the Sanitary District of Chicago, a Mu- 
nicipal Corporation, organized under the laws of the 
State of Illinois, has constructed an artificial channel 
from Robey Street, Chicago, to Lockport, and has been 
heretofore granted permission by the Secretary of War 
to make certain improvements in the Chicago River, for 
the purpose of correcting and regulating the cross sec- 
tion of the river so as to secure a flowage capacity of 
300,000 eubie feet per minute with a velocity of one and 
one quarter miles an hour, it being intended to connect 
the said artificial channel with the west fork of the south 
branch of Chicago river at Robey Street in the said city 
of Chicago; 

AND wHeEREAS, the said Sanitary District of Chicago 
has now applied to the Secretary of War for permission 
to divert the waters of the said Chicago River and cause 
them to flow into the said artificial channel at Robey 
Street as aforesaid; 

AND WHEREAS, the said Sanitary District of Chicago 

3320 represents that such movable dams and sluice gates as 
are necessary to, at all times, secure absolute and com- 
plete contro] of the volume and velocity of flow through 
the Chicago River heve been constructed ; 

Now THEREFORE, the Chief of Engineers having con- 
sented thereto, this is to certify that the Secretary of 
War hereby gives permission to the said Sanitary Dis- 
trict of Chicago to open the channel constructed and 
cause the waters of Chicago River to flow into the same 
subject to the following conditions: 


730 


1. That it be distinctly understood that it is the in- 
tention of the Secretary of War to submit the questions 
connected with the work of the Sanitary District of Chi- 
cago to Congress for consideration and final action, and 
that this permit shall be subject to such action as may 
be taken by Congress. 

2. That if, at any time, it becomes apparent that the 
current created by such drainage works in the south and 
main branches of Chicago River, be unreasonably ob- 
structive to navigation or injurious to property, the Sec- 
retary of ‘War reserves the right to close said discharge 
through said channel or to modify it to such extent as 
may be demanded by navigation and property interests 
along said Chicago River and its south branch. 

3. That the Sanitary District of Chicago must assume 
all responsibility for the damages to property and navi- 
gation interests by reason of the introduction of a ecur- 
rent in Chicago River. 

3321 Witness my hand this 8th day of May, 1899. 
(Signed) R. A. AuecrEr, 
[SEAL | Secretary of War. 
(Signed) Joun M. Witson, 
Brig. Gen’l Chf. of Engs. 
USA es 


3322 Mr. Cuiperrietp: I also desire to offer in evidence a 
communication from Major J. H. Willard, corps of en- 
gineers, United States Army, transmitting an order of 
the secretary of war of the United States modifying the 
permit given the Sanitary District of Chicago to open 
the artificial channel from Robey street, Chicago, to 
Lockport, Illinois, and causing the waters of the Chi- 
cago River to flow into the same, dated May 8, 1899. The 
order being the 9th day of April, 1901. 


Whereupon said document was received in evidence by 


731 


the court, marked Exhibit 61, and is in words and fig- 
ures following, to-wit: 


Bolo esr 61. 


Alex J. Jones, President Fred M. Blount, Treasurer 
William H. Baker, Vice President A. R. Porter, Clerk 
James Todd, Attorney 


Isham Randolph, Chief Engineer 


Board of Trustees. 


THE William H. Baker 
SANITARY DISTRICT Joseph C. Braden 
OF CHICAGO Zina R. Carter 
Security Building. Frank X. Cloidt 


Alex J. Jones 
William Legner 
Thomas A. Smyth 
Thomas J. Webb 
Frank Wenter 


Cuicaco, April 22, 1901. 


To the Honorable, the Board of Trustees of the Samtary 

Mstrict of Chicago: 

GENTLEMEN : 

I have the honor to transmit herewith a communica- 
tion of Major J. H. Willard, Corps of Engineers, U. 8. 
A., transmitting an order of the Secretary of War dated 
Apru 9, 1901, modifying and regulating the discharge 
of water from the Chicago River into the Drainage Canal 
so that the maximum flow shall not exceed 200,000 cubic 
feet of water per minute. 

The order of the Secretary of War was received at 
nine o’clock a. m., Saturday, April 20, 1901, and I im- 
mediately instructed the Engineering Department of the 
District to comply with said order. I recommend that 
the correspondence and order herewith submitted, be 
printed in the Proceedings of the Board, and placed on 


732 


file as a part of the permanent records of the Sanitary 
District of Chicago. 
Respectfully submitted, 
(Signed.) Arex J. JONES, 


President. 
3324 SUBJECT: 


Chicago and Calumet Harbors, 
Illinois and Calumet Rwers, 
Iilinois and Mississippi Canal. 


UNITED STATES ENGINEER OFFICE, 
1637 Indiana Avenue, P. O. Drawer 132. 
Cuicaco, Ill., Apr. 19, 1902. 
Alex J. Jones, President, 
Board of Trustees, Sanitary District of Chicago, 
Security Building, Chicago, Lil. 
Sir: 

I have the honor to enclose herewith, by order of the 
War Department, an order from the Secretary of ‘War 
modifying the permit granted to the Sanitary District of 
Chicago to open an artificial channel from Robey street, 
Chicago, to Lockport, Ill., and cause the waters of Chi- 
cago River to flow into the same, dated May 8, 1899, and 
to respectfully request that receipt of same be acknowl- 
edged. 

Very Respectfully, 
(Signed.) J. H. Wrwarp, 


Major, Corps of Engineers, U. S. A. 
(1 encl.) 


Chicago River. 
J AT Ges 
(6353) 

332) Wuernas, Under date of May 8, 1899, the secretary of 
war granted permission unto the Sanitary District of 
Chicago to open the artificial channel from Robey street, 
Chicago, to Lockport, and cause the waters of Chicago 


733 


River to flow into the same, upon the following condi- 
tion, inter alia: 

‘o. That if, at any time, it becomes apparent that 
the current created by such drainage works in the South 
and Main Branches of Chicago River, be unreasonably 
obstructive to navigation or injurious to property, the 
secretary of war reserves the right to close said dis- 
eharge through said channel or to modify it to such ex- 
tent as may be demanded by navigation and property i1n- 
terests along said Chicago River and its South branch”’’: 

AND WHEREAS, it is alleged by various commercial and 
navigation interests that the present discharge from the 
river into the Drainage Canal sometimes exceeds three 
hundred thousand (300,000) cubic feet per minute, caus- 
ing a velocity of nearly three (3) miles per hour, which 
ereatly endangers navigation, in the present condition 
of the river; . 

Now THEREFORE, This is to certify that the secretary 
of war upon the recommendation of the chief of engi- 
neers, hereby directs said Sanitary District to regulate 
the discharge from the river into the Drainage Canal so 
that the maximum flow through the Chicago River and its 
South Branch shall not exceed two hundred thousand 
(200,000) eubie feet per minute. 

3325 Wirness my hand this 9th day of April, 1901. 
(Signed.) Enravu Root, 
[ SEAL. | Secretary of War. 


Which said order is endorsed upon the back as fol- 
- lows: 
BO 3930.7? 
(Also): ‘‘Office of the Secretary War DerparTMENt, 
Apr. 6, 1901, 2560 of 1900/34.’ 
(Also): ‘‘Office, Chief of Engineers War DspaRTMENT, 
Apr. 18, 1901, 35242/54.”’ 


734 


(Also): ‘‘U. S. Ene’r Orrice, Chicago, Ill. Received 
Pe OU Lee 
(Also): ‘Order of Secretary of War directing Dis- 
trict to regulate flow of water from Chicago River into 
the Drainage Canal, presented to Board of Trustees re- 
ceived, printed and filed April 22, 1901. 
A. R. Porter, 
Clerk.,’’ 


Which said Exhibit 61 is endorsed upon the back as 
follows: } 

“Box ‘A’ Fine No. 5. Order from the Secretary of 
War regulating the flow of water in the Main Channel, 
dated April 9, 1901. Printed and Filed April 22, 1901. 
Page 7157 of the Proceedings.’’ 

3327 Mr. CurperrieLp: I algo desire leave to offer in evi- 
dence a communication dated July 23, 1901, from Hon. 
Elihu Root, secretary of war, United States, regulating 
the flow of the Sanitary District Channel. 

Whereupon said document was received in evidence 
by the court, marked Exhibit 62, and is in words and 
figures following, to-wit: 


3328 EXxXHIBit 62. 
WAR DEPARTMENT, 
Washington, 
File No. 2,560 of 1900. July 23, 1901. 
Sir: 


Referring to War Department order of April 9th last, 
restricting the flow of water through the Chicago River 
under War Department permit of May 8, 1899 to 200,000 
cubic feet per minute, and replying to your letter of 15th 
instant, in which you request, for reasons stated, that 
the said order be amended to permit a flow of 300,000 
cubic feet per minute between the hours of 4 p. m. and 


735 


twelve o’clock midnight, I beg to inform you that I have 
this day approved the modification last referred to, 
which approval will be subject to revocation by the De- 
partment in case the increase shall prove to be dangerous 


to navigation. 
Very respectfully, 


(Signed.) Exravu Root, 


Secretary of War. 
Mr. Alexander J. Jones, 


President. Santary District of Chicago, 
Chicago, Illinois. 


(Endorsed upon the back as follows): 


‘¢Box ‘A’ Fine No. 6. AMENDED orDER from the SEcRE- 
TARY OF War in reference to the flow of water through the 
Main Channel, dated July 23, 1901. Printed and Filed 
August 14, 1901. Page 7372 of the Proceedings.’’ 


3329 Said order bears upon the back thereof the following 
endorsement: 

‘‘War Department. Amended Order permitting a flow 

of 300,000 cubic feet per minute through Chicago River. 


Presented to Board of Trustees, received, printed and 

filed, August 14, 1901. 
: L. C. Leaner, 

Acting Clerk.’’ 


3330 Mr. CuiperrreLp: I also desire to offer in evidence a 
communication from William Cary Sanger, acting secre- 
tary of war of the United States, dated December 6, 
1901, transmitting an order dated December 5, 1901, regu- 
lating the flow of the Sanitary District Channel. 

Whereupon said document was received in evidence by 
the court, marked Exhibit 63, and is in words and figures 
following, to-wit: 


odd 


736 


ExuHisit 63. 
WAR DEPARTMENT, 
Washington. 
File No. 2,560 of 1900. December 6, 1901. 


GENTLEMEN: 

Referring to your letter of 16th ultimo, requesting, on 
behalf of the Sanitary District of Chicago, permission 
to increase the flow of water in the Chicago River from 
200,000 eubie feet to 250,000 cubic feet per minute, from 
midnight to 4:00 p. m. daily, under authority previously 
granted by this Department, I have the honor to trans- 
mit herewith, for retention, an instrument granting the 
said Sanitary District of Chicago permission to regu- 
late the discharge of water into the canal so that the 
maximum flow through the river shall not exceed 250,000 
cubie feet per minute throughout the twenty-four hours 
of the day, subject to the conditions set forth in the said 


instrument. 
Very respectfully, 


(Signed.) Wm. Cary SANGER, 
Assistant Secretary of War. 


THe Boarp or TRUSTEES OF THE 
Sanitary Districr or CuHrcago, 
Security Building, 

Chicago, Illinois. 


(Inclosure: 2560-44 of 1900.) 
J. A. Gl: 


3332 (6353) 


Wuereas, under date of May 8, 1899, the Secretary of 
War granted permission unto the Sanitary District of 
Chicago to open the artificial channel from Robey street, 
Chicago, to Lockport, and cause the waters of Chicago 
River to flow into the same, upon the following condi- 
tion, ter alia: 


737 


‘co. That if, at any time it becomes apparent that 
the current created by such drainage works in the South 
and Main Branches of Chicago River, be unreasonably 
obstructive to navigation or injurious to property, the 
Secretary of War reserves the right to close said dis- 
charge through said channel or to modify it to such ex- 
tent as may be demanded by navigation and property in- 
terests along said Chicago River and its South Branch’’; 

AND wHEREAS, the Secretary of War subsequently di- 
rected said Sanitary District of Chicago, to regulate the 
discharge of water into the Chicago Drainage Canal so 
that the maximum flow through the Chicago River shall 
not exceed 200,000 cubie feet per minute from midnight 
to 4 Pp. m., nor 300,000 cubic feet per minute from 4 Pp. Mm. 
to midnight ; 

AND WHEREAS, said Sanitary District of Chicago has 
applied to the Secretary of War for permission to in- 
crease the flow between midnight and 4 p. m. daily, to 
250,000 cubic feet per minute; and the Chief of Engi- 
neers has recommended that the increase applied for be 
granted, but that the rate of flow from 4 p. m. to mid- 
night be reduced to 250,000 cubic feet per minute so that 
the flow through the Chicago River shall not exceed 250,- 
000 cubic feet per minute throughout the 24 hours of the 
day ; 

Now THEREFORE, This is to certify that, in accordance 
with the recommendation of the Chief of Engineers, the 
Secretary of War hereby gives unto said Sanitary Dis- 
trict of Chicago permission to regulate said discharge so 
that the maximum flow through the Chicago River shall 
not exceed 250,000 cubie feet per minute throughout the 
24 hours of the day, upon the following conditions: 

1. That this permission shall be in lieu of the present 
authorized rates of flow as stated above. 

2. That the permission herein given shall be subject 


738 


to such modification as in the opinion of the Secretary of 
War the public interests may from time to time require. 


3. That said Sanitary District of Chicago shall be re- 
sponsible for all damages inflicted upon navigation in- 
terests by reason of the increase in flow herein author- 

~ ized. 

Witness, my hand this 5th day of December, 1901. 


(Signed.) ‘Wm. Cary SANGER, 
Assistant Secretary of War. 


Which said order is endorsed upon the back as fol- 
lows: 


‘‘Office of the Secretary War Department, Dec. 5, 
1901, 2560 of 1900/44.’’ 


3333 Endorsed upon the back as follows: 


‘‘Box ‘A’ Fiuz No. 7. Permit from the SECRETARY OF 
War regulating the flow of water in the river to 250,000 
cubic feet per minute throughout the 24 hours of the day, 
dated December 5, 1901. Printed and filed December 11, 
1901. Page 7521 of the Proceedings.”’ 


Mr. Curperrietp: I also desire to offer in evidence a 
3334 communication dated July 31, 1908, by Robert Shaw 
Oliver, acting secretary of war of the United States, 
transmitting an order dated May 8, 1899, on the part of 
Russell A. Alger, secretary of war, and approved by 
John M. Wilson, Brig. Genl. chief of engineers, United 
States Army, regulating the flow of the Sanitary Dis- 
trict of Chicago. 
Whereupon said document was received in evidence 
by the court, marked Exhibit 64, and is in words and 
figures following, to-wit: 


3330 


739 


Eixurpit 64. 


UNITED STATES OF AMERICA, 
WAR DEPARTMENT. 
Wasuineton, July 31, 1908. 

I HEREBY CERTIFY that the attached paper is a true copy 
of the original on file in the office of the Chief of Engi- 
neers, U. 8. Army. 

(Signed.) E. Evetera WInstow, 
Acting Cluef of Engwmeers. 


Br 1r KNown that KH. Eveleth Winslow, who signed the 
foregoing certificate, is the acting chief of engineers, and 
that to his attestation as such full faith and credit are 
and ought to be given. 

IN WITNESS WHEREOF, I have hereunto set my hand, and 
caused the seal of the War Department to be affixed on 
this first day of August one thousand nine hundred and 
eight. 

[ SEAL. | (Signed) Roperr SHAw OLIVER, 
Acting Secretary of War. 


‘WHEREAS, By Section 10 of an Act of Congress ap- 
proved March 3, 1899, entitled ‘An Act Making appro- 
priations for the construction, repair and preservation of 
certain public works on rivers and harbors, and for other 
purposes,’ it is provided that it shall not be lawful to 
alter or modify the course, location, condition, or capa- 
eity of the channel of any navigable water of the United 
States unless the work has been recommended by the 
Chief of Engineers and authorized by the Secretary of 
War prior to beginning the same; 

Anp wHekreEas, the Sanitary District of Chicago, a mun- 
icipal corporation organized under the laws of the State 
of Illinois, has constructed an artificial channel from 
Robey street, Chicago, to Lockport, and has been hereto- 


740 


for granted permission by the Secretary of War to make 
certain improvements in the Chicago River for the pur- 
pose of correcting and regulating the cross section of the 
river so as to secure a flowage capacity of 300,000 cubic 
feet per minute with a velocity of one and one-quarter 
miles an hour, it being intended to connect the said arti- 
ficial channel with the west fork of the South Branch of 
Chicago River at Robey street in the said City of Chi- 
cago; | 

AND WHEREAS, the said Sanitary District of Chicago 
has now applied to the Secretary of War for permission 
to divert the waters of the said Chicago River and cause 
them to flow into the said artificial channel at Robey 
street as aforesaid; 

AND wHEREAS, the said Sanitary District of Chicago 
represents that such movable dams and sluice gates as: 
are necessary to, at all times, secure absolute and com- 
plete control of the volume and velocity of flow through 
the Chicago River have been constructed ; 

Now THEREFORE, the Chief of Engineers having con- 
sented thereto, this is to certify that the Secretary of 
War hereby gives permission to the said Sanitary Dis- 

3337 trict of Chicago to open the channel constructed and 
cause the waters of Chicago River to flow into the same 
subject to the following conditions: 

1. That it be distinctly understood that it is the in- 
tention of the Secretary of War to submit the questions 

3337 connected with the work of the Sanitary District of Chi- 
cago to Congress for consideration and final action, and 
that this permit shall be subject to such action as may be 
taken by Congress. 

2. That if, at any time, it become apparent that the - 
eurrent created by such drainage works in the South and 
Main Branches of Chicago River, be unreasonably ob- 
structive to navigation or injurious to property, the Sec- 


741 


retary of War reserves the right to close said discharge 
through said channel or to modify it to such extent as 
may be demanded by navigation and property interests 
along said Chicago River and its South Branch. 

3. That the Sanitary District of Chicago must assume 
all responsibility for damages to property and naviga- 
tion interests by reason of the introduction of a current 
in Chicago River. 

Witness my hand this 8th day of May, 1899. 

R. A. ALGER, 


Secretary of War. 
JoHN M. WItson, 


Brig. Genl. Chf. of Engs. U.S. A. 
[ SEAL, | 


3008 Appearing on the back of which in pencil is the fol- 
lowing: 
‘26384. Printed in proceedings of May 10, 1899, pgs. 
0675 & 76.’’ 


3009 Recess taken to 1:15 p. M., same day. 
3340 | November 27, 1912, 1:15 p. m. 


Martin J. Hogan, a witness for defendant, being sworn 
testifies as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Martin J. Hogan. I reside at Chicago, [li- 
nois. I ama police officer and pilot on a police boat. 
The police boat is a life saving boat for the purpose of | 
rescue and protection of life and property on the Chi- 
cago River. I have been connected with the police de- 

3341 partment of the City of Chicago about fifteen years. I 
have been master of the present boat three years. J am 
a regularly licensed master. Before I went with the City 


742 


of Chicago I was pilot on a boat for the Chicago Edisort 
Company, Commonwealth Edison Company for a few 
years, and for the Fisher Coal Company, a tug boat. I 
ran the tug boat Robert A. Dunham. I ran the steamer 
Imperial and I ran other boats and have lived on boats 
in former years; raised on boats along the canal and 
river, 

I am perfectly familiar with the Chicago River. There 
is a north and south branch and then there is what we 
call the west fork of the south branch and a channel lead- 
ing from the south branch to the entrance of the Drain- 
age Canal. That is located at Robey street. It would be 
about Thirty-first street and Robey. The entrance to the 
canal is on the south branch. 

3342 Iam familiar with the point where the Chicago River 
and Lake Michigan meet. The river is approximately 
500 feet wide at that point. The current is less than half 
a mile, it is hardly perceptible. I know where the Rush 
street bridge is located. It is very close to 200 feet wide 
and the current of the river at that point is very nearly 
a mile an hour. 

IT am acquainted with the Lake street bridge. I should 
judge that the width of the Chicago River at that point 
between the center pier on each side and the banks of the 
stream would be 50 feet, making 100 foot span. The 

3343 current is close to a mile and a half at Lake street. 
There is a bend at that point of the river and there is 
also an additional flow comes from the north branch. 
The north branch enters about, 1,000 feet to the north of 
Lake street. 

I am acquainted with the north branch as far up as 
Irving Park boulevard and up to Winnetka. Up at Irv-. 
ing Park the channel is very narrow, about 80 feet. There 
is very little current in the north branch. It is sluggish 
along there and the wind sometimes causes floating ob- 


743 


jects to go a little faster than ordinary, but on a calm 
day you wouldn’t hardly notice any current. 

3344 The south branch swings in and joins the river at Lake 
street. The east branch of the south branch flows into 
Lake street and becomes the south branch of the river. 

I know where the Jackson street bridge is. The south 
branch of the Chicago River at Jackson street is about 
125 feet wide. The current may go a little better than a 
mile and a half, maybe a mile and three-quarters. 

I know where the Fort Wayne bridge is at Stewart 
avenue. I reckoned about four miles from the mouth of 
the river. The flowing section of the stream at Stewart 
avenue is probably 50 foot channel on each side. The 
current is about a mile and three-quarters, sometimes 

3345 two miles at that point. 

I know the river at Halsted street. There is quite a 
current at that point caused by the narrow space. The 
abutments are built ont there and there is an angle in 
the river. Just before you get to Halsted street the river 
is close to 200 feet wide. It narrows down right in the 
draw of the bridge. This is a lift bridge and the abut- 
ments are built right up square. Its maximum current 
is two miles. 

I am acquainted with the Chicago River at Robey 
street and know where the entrance to the Sanitary Dis- 
trict canal is located. The width of the entrance of the 

3346 Sanitary District canal is about 300 feet wide. The cur- 
rent isn’t as strong as it would be in a narrow place. The 
current may be about half a mile. It isn’t so perceptible 
to us in handling boats. We don’t pay much attention to 
it. At that point the current is a mile and a half easy. 

3347 The wind blowing off the lake from the northwest or 
northeast raises the water level in the river and it rushes 
in for a little while and then when the wind dies down it 
kind of backs out again. Whenever there is a big storm 


744 


or big blow comes in the lake the water raises and falls 
alternately every 20 minutes; sometimes flows right out 
into the lake again. The level goes down two or three 
feet and we know there is a storm coming when we see 
that. Something in the nature of a tidal wave back and 
forth. 


Cross-Examination by Mr. O’Conor. 


The Chicago River in a general direction flows south- 

west. I have seen it flow out into the lake prior to 1900. 
3348 It was probably stagnant before that time. 

The mouth of the Chicago River was considered about 
where the light house is out in Lake Michigan. The water 
apparently comes from Lake Michigan and some from 
the tributary streams. - 


This head of the Chicago River now is at Robey street. 

3349 Before that it was somewhere out on the northwest side 

towards Galena. We are on the western slope of the 

watershed and the water flows sometimes from that direc- 

tion and sometimes from the Desplaines River on the 

south. The water does not come from the Desplaines 
now. 


The Chicago River is about 22 feet deep at its present 
mouth. The water all through the Chicago River is 
3300 about 21 feet in the channel. 


3351 I haven’t noticed any difference in the flow between 
winter and summer. The lake shipping is practically 
over on the first of September; commences about the first 
of April. The flow is apparently the same the year 
around. 


I never took any measurements to determine the 
velocity. I simply judged from objects I have seen float- 
ing from where we meet them in the river. It is a mat- 
ter of judgment on my part. I have seen the depth meas- 

3352 ured by engineers who were preparing to sink a tunnel. 


740 


I imagine the depth of the river as I have given it is ap- 
proximately correct. On the velocity I have given my 
best judgment. 


Re-direct Examination by Mr. Chiperfield. 


The depth I spoke about was 21 or 22 feet at Loomis 
street. I should judge, at least 15 or 20 feet from the 
dock on each side. As the stream approaches the dock 

3303 it runs to about 18 feet, the deepest part is in the cen- 
ter. 


Re-cross Examination by Mr. O’Conor. 


In order to accomodate a boat that is drawing 19 feet 
of water you would not have to have 19 feet 
of water along the docks, because the boats that are built 
for lake travel are not built on square or box type. They 
are bevelled and cut down so when the side of the boat 
rests against the dock at low water, the bottom of the boat 
may be eight or nine feet from the dock. 

3354 The Chicago River in my best judgment all the way 
along runs from 18 to 20 feet. 


THomas Moynawan, a witness for defendant, being 
sworn, testifies as follows: 


Direct Exammation by Mr. Chiperfield. 


My name is Thomas Moynahan. I reside at Chicago. 

I have been harbor master of the City of Chicago since 

June, 1911. I have been acquainted with the Chicago 

River for some years, 42 years I would say. I was a 

3350 bridge tender for many years, tending the bridge at 
State street. 


As harbor master of the City of Chicago I have no- 
ticed the current. and width of the Chicago River. At 


746 


the harbor entrance and down to Lake street it is about 
200 to 250 feet wide. South of Lake street it is about 200 
from there to the Drainage Canal I would judge; some 
parts of it is a little narrower. Around Halsted street it 
might be about 100 feet in the draw, and between Van 
Buren and Jackson streets it might be 100 feet there, 
not quite 100. At the narrow points the bridges obstruct 
the river. 

3306 I know where the Pennsylvania crosses. I should 
judge that it is about 60 feet or somewhere about that 
wide at that point. 

I know the Jackson street bridge. The river would be 
about 95 to 100 feet wide there. 

At State street between the piers of the bape it is 
140 feet wide. 

The current of the river as I have observed it is about 
a mile and a half, take it from the north of the river 
down to Lake street. Where the north branch comes in. 
And it runs down to a mile and a quarter south of there. 

3357 The north branch has only enough current so you can 
barely observe it. The south fork of the south branch 
has very little current. 

From Lake street south to the Drainage Canal the cur- 
rent is a mile or a mile and a quarter. 

3358 I have been acquainted with Chicago River 42 years. 


Cross-Exammation by Mr. O’Conor. 


I gave a mile and a half as the speed of the river at 
Lake street. I am simply giving you my best judgment 
in all of these matters. They are not based upon meas- 
urements or readings actually taken. This is the first 
time I have been called on a case of this sort and about 

the third time I have ever been in a court room. 
3309 Where the Chicago River meets Lake Michigan it 
would be about three or four hundred feet wide. 


747 


It is the same width. The Sanitary District has not 
widened the Chicago River to my knowledge; they 
have dredged the river but not widened it. At 
the mouth of the harbor the current may be two 
miles, I would not say for sure. I would think it 
2260 is 26 to 28 feet deep. At Rush street bridge it is about 
24 to 26 feet deep. It is about a uniform depth pretty 
near to Lake street, then-it is 21 feet outside of that. 
There is about 15 feet left at the side of the docks to 
keep the docks from falling in. If they dredged a uni- 
form level at the bottom it would be injurious to the 
docks. Maybe it is ten feet from the top of the surface 
3361 of the water there. It is my best judgment down as 
far as Lake street that it runs from 16 to 15 feet near 
the docks out to 24 to 26 feet in the center. 
At the Rush street bridge it may be flowing a mile and 
a half. It does not flow as fast there as it does at the 
mouth. More space at the mouth. I judge the water is 
flowing faster there. About at Lake street the velocity is 
a mile and a half or a mile and a quarter, not flowing as 
3362 fast as it does at Rush street. 


3363 CorNELIUs O’Connor, a witness for defendant, being 
sworn, testifies as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Cornelius O’Connor. I reside in Chicago. 

I am a rod man working for the City of Chicago in the 

3364 harbor division. I am familiar with the river and have 

been for eight or ten years. I know where Lake Mich- 

igan and the Chicago River join. The width of the 

stream at that point is 290 to 300 feet. The current is 
about a mile an hour. 

At Rush street the width is 280 to 290 feet. At Lake 

street the same. Jackson street 95 to 100, At the Penn- 


748 


sylvania bridge 110 feet. At Loomis street 140 feet.. At 
Taylor street 150 to 160 feet in the draw of the bridge. 
At Halsted street about 85 to 100 feet. 


The velocity of the stream in the main river is about a 
mile an hour; in the south branch about a mile and a 
quarter to a mileandahalf. No noticeable current in the 
north branch of the Chicago River. There is very little 
in the south fork of the south branch. 


I know where the entrance of the Sanitary District 
Canalis. The width in the entrance is about 180 feet and 
the current at that place about a mile anda half. I have 

3366 been observing the Chicago River for eight years. 


Cross-Examination by Mr. O’Conor. 


I have never taken any measurements on the Chicago 
River at the entrance to Lake Michigan. I am giving 
you my best judgment. Might be slightly wider or nar- 
rower. Some of the widths I have given are well known. 
The river is 21 to 22 feet deep where it connects with 
Lake Michigan; about the same at Rush street. It is 

3367 supposed to be that to Robey street. It is shallower to- 
wards the wharves. A boat drawing 18 feet six can 
come into the Chicago River. 


The velocity where it comes from the lake is about a 
mile an hour. It does not increase when it gets to Rush 
street. The only increase is where the draw bridges are 
narrow. 


3368-69 The current in Bubbly Creek, otherwise known as 


the south fork of the south branch is about a mile an 
hour. 


749 


3370 RicHarp Mauer, a witness for defendant, being sworn 
testifies as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Richard Maher. I reside in Chicago. I 
am a hoisting engineer at the Throop street bridge. The 
Throop Street bridge crosses the drainage canal. Il 

3371 crosses the Chicago River. The canal and the river are 
the same there. Where the river enters the Drainage 
Canal I should judge it is about 200 feet wide outside of 
the bridge. Inside of the bridge it is much narrower, 
about 160 feet I should judge. 

The current of the river at that point is about a mile 
or amile and a quarter. I don’t think there is much dif- 
ference at Robey street. 


3372 M. W. SHELLy, a witness for defendant, being sworn tes- 
tifies as follows: 


Direct Hxammation by Mr. Chiperfeld. 


My name is M. W. Shelly. I reside in Chicago. I am 
bridge tender for the Pennsylvania Company. My bridge 
is located at 20th and Stewart avenue. 

The width of the river at that point is something like 
100 feet. The current is about two miles an hour in the 
center of the draw. The river is 100 feet wide taking 

3373 both sides of the river, the bridge is in between. In ad- 
dition to the bridge obstruction, there are obstructions 
presented by piers built for the new bridge to be put in; 
probably takes up about 15 feet more, making a total 
width of the river at that point not over 85 feet. The 
current is two miles an hour in my judgment. 

3374. Mr. Cureerrrenp: May we regard the exhibits which 
I introduced this forenoon as having been read? 


790 


Mr. O’Conor: Yes. 

Mr. CuiperFieLD: I desire to offer in evidence the 
rainfall data since the year 1893 at Antioch, in the State 
of [llnois, certified to by the Secretary of Agriculture. 
I will put them all in in one list and save time. 

I ask to have that marked as Exhibit ‘‘65.”’ 

Also for the same period at Chicago, Cook County, Ili- 
nois, from 1893 down and ask that the same be marked 

3375 Exhibit ‘‘66.’’ 

Also for the same period of time at Chicago Heights, 
Illinois and ask the same to be marked Exhibit 67. 

Also for the same period at Fort Sheridan and ask 
that the same be marked 68. 

Also for the same period at the City of Joliet and ask 
that the same be marked Exhibit 69. 

Also for the same period at LaGrange and ask the 
same be marked Exhibit 70. 

Also for the same period at Lake Forest and ask the 
same be marked Exhibit 71. | 

Also for the same period at Lake Villa, and ask the 
same be marked Exhibit 72. 

Also for the same period at Morgan Park and ask the 
same be marked Exhibit 73. 

Also for the same period at Racine, Wisconsin, and 
ask the same be marked Exhibit 74. 

Also for the same period at Wheaton, Du Page Coun- 
ty, Illinois, and ask the same be marked Exhibit 75. - 

Also for the same period at Collegeville, Jasper Coun- 
ty, Indiana, and ask the same be marked Exhibit 76. 

3376 Also for the same period at Gilman, Iroquois County, 
Illinois, and ask the same be marked Exhibit 77. 

Also for the same period for Hoopeston, and ask the 
same be marked Exhibit 78. 

Also for the same period for Kankakee, and ask the | 
same be marked Exhibit 79. 


Tol 


Also for the same period for Knox, Starke County, 
Indiana, and ask the same be marked Exhibit 80. 

Also for the same period for LaPorte, Indiana, and 
ask the same be marked Exhibit 81. 

Also for the same period for Martinton, Lllinois, and 
ask the same be marked Exhibit 82. 

Also for the same period for Plymouth, Indiana, and 
ask that the same be marked Exhibit 83. 

Also for the same period for Rensselaer and ask the 
same be marked Exhibit 84. 

Also for the same period for South Bend, Indiana, 
and ask the same be marked Exhibit 85. 

Also for the same period at Syracuse, Indiana, and 
ask the same be marked Exhibit 86. 

Also for the same period for Valparaiso, and ask the 
same be marked Exhibit 87. 

Also for the same period for Watseko, Iroquois Coun- 

| ty, Illinois, and ask the same be marked Exhibit 88. 
3377 Also for the same period for Wellington, [linois, and 

ask the same be marked Exhibit 89. 

Also for the same period for Winamac, Indiana, and 
ask the same be marked Exhibit 90. 

Also for the same period at Aurora, Kane County, 
Illinois, and ask the same be marked Exhibit 91. 

Also for the same period for Chemung, McHenry Coun- 
ty, Illinois, and ask that the same be marked Exhibit 92. 

Also for the same period for Delavan, Wisconsin and 
ask the same be marked Exhibit 93. 

Also for the same period for Dwight, Illinois, and ask 
the same be marked Exhibit 94. 

Also for the same period for Elgin, [linois, and ask 
the same be marked Exhibit 95. 

Also for the same period for Oswego, Illinois, and ask 
the same be marked Exhibit 96. 

Also for the same period for Riley, McHenry County, 
Illinois, and ask the same be marked Exhibit 97. 


752 


Also for the same period for St. Charles, Kane Coun- 
ty, Illinois, and ask the same be marked Exhibit 98. 

Also for the same period for Sandwich, Illinois, and 
ask the same be marked Exhibit 99. 

Also for the same period for Sharon, Wisconsin, and 
ask the same be marked Exhibit 100. 

Also for the same period for Sycamore, Illinois, and 
ask the same be marked Exhibit 101. 

Also for the same period for Waukesha, Wisconsin, 
and ask the same be marked Exhibit 102. 

Also for the same period for Woodstock, McHenry 
County, Illinois, and ask the same be marked Exhibit 
103. 

Also for the same period for Yorkville, Illinois, and 
ask the same be marked Exhibit 104. 

Also for the same period for Forrest, Illinois, and ask 
the same be marked Exhibit 105. 

Also for the same period for Lexington, Illinois, and 
ask the same be marked Exhibit 106. 

Also for the same period for Minonk, Illinois, and ask 
the same be marked Exhibit 107. 

Also for the same period for Pontiac, Illinois, and ask 
the same be marked Exhibit 108. 

Also for the same period for Strawn, Illinois, and ask 
the same be marked Exhibit 109. 

Also for the same period for Streator, Illinois, and 
ask the same be marked Exhibit 110. 

Also I want to introduce a certified copy of report of 
the climatological service department of the United States 

3379 under the hand of the secretary, the acting secretary 
of the department with the seal of the department of 
agriculture of the United States Government attached 
thereto and ask to have it marked Exhibit 111. 

Whereupon said documents were received in evidence 
by the court, marked respectively Exhibits ‘‘65’’ to 


753 


‘*111’? both inclusive, and are in words and figures fol- 
lowing, to-wit: 

(Said Exhibits 66 to 111, being certified in the same 
manner as Exhibit Number 65.) 


3380 Exxuisit ‘°65.’’ 


‘UNITED STATES OF AMERICA, 
DEPARTMENT OF AGRICULTURE.. 
WasHineton, D. C. 
November 12, 1910. 
Pursuant to section 882 Revised Statutes, I hereby 

certify that it appears from the records of The United 
States Weather Bureau, Washington, D. C., that the at- 
tached statement showing the monthly and annual 
amounts of precipitation at 

Antioch, Lake County, Lllinois, 
is a true copy of the official records on file in the Weather 


Bureau. 
(Signed) H. EK. Wrttiams, 


Acting Clef, U. S. Weather Bureau. 


Be it known that H. I. Williams, who signed the fore- 
going certificate, is the Acting Chief U. S. Weather 
Bureau, and that to his attestation full faith and credit 
are and ought to be given. 

In witness whereof, I have hereunto signed my hand 
and cause the seal of the department of agriculture ‘to be 
affixed on this 12th day of November, 1910. 

(Signed) W. N. Hays, 
Acting Secretary of Agriculture. 


154 


3380-3479 EXHIBIT 65. ANTIOCH, ILL. LAKE Co. 


Year Jan. Feb. Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Yearly 

















IDOL .cvac Sees, bevn. Sue MUS Shag, erSou Leal) 197 -0.61) yng 
1902 0.45 1.40 1.95 1.30 7.45 5.90 6.25 ..55 7.35 3.67 F.80 > S70Gee77 
1903 0.35. 0.60 2.60 2.55 3.65. 2.90 6.60 7.95 6.35 0.80 0:70) 12g 
1904 0.55 1.10 5.20 2.20 1.90 1.39 4.41 2:20 4.55 1.20 0.75 so ages 
1905 1.00 2:05 2:65. ..%. 4.45°°2.95° 5.80" 5-20 2.80 = 1 70 ee 
1906 3.20 2.40 0.60 1.95 2.10 2.95 1.65 5.33° 5:87 2.25) d1s0 epee 
1907 3.80 0.30 1.65 0.95: 5.29 °4:80 2:02 3.96. 5.43° 1:05 “Si 2ntGeee ee 
1908 2.55 2.20 3.35 4:85 5.26 3.60 4.29 1.57 1.00 1.15 “2770 seit 
1909 2.20 1.60 0.60 8.68 °-1.05 2.00 1215 6.55 .3.62:20/61 “3723 "eee 
1910 2.20. 0.65 0.05 2.94. 4.94 1.30 0.838°3.61 2.80 2.379)2.00 3 
EXHIBIT 66. CuHIcaGo, ILL. CooK Co. 


1871 4.13 1.45. 2.66 3.70 3.90 5.56 2.52 2.01. 0.74 1.88 3.62 )o4eeeaoeon 
1872 0.68 0.84 3.79, 3.03 3.24 3.45 3.09 2.59 6.43 0.65 1.06 0.22 29.07 
1873. 2.56 0.47..0.89 6.22 7.20 1.44 4.04 1.58 3.53 2.43 1.61 4.44 36.41 
1874 3.47 1.51 2.15 2.67 2.08 3.25 0.58 3.15 3.76 2.55 2.83 0.63° 28763 
1875 0.96 1.99. 1.43 2.382 3.64 5.17 °7.18 93.297 '4:39 4132 ©0. 7a ear eee 
1876 3.22 3.90. 4.04 2.07 1.85 5.96 3.11 3.66 3.74 1.20 3.25 0.48 36.48 
1877 1.91 0.06 5.37° 2/42 1.81 6.04 2.98 3.06 2:02 6.51 6.08 92. 75eeaeieos 
1878 1.31. -2.12 4.39- 5.57, 5.22 3.02 6.09 3.66 1:99 5.17, 0.83.0 22bseeaiegs 
1879 0.54 1.47 2.37 1.93 3.89 3.18 5.58 0.45 1.18 2.72: 4.93 247 30.71 
1880 3.53 2.91 2.25 5.20 4.97 3.50 3.07 4:47- 2.25 3.19 0°87) Teileegaeas 
1881 0.87 5.98 2.99 1.84 1.85 5.93 4.31 0.54 4.34 6.89 5.97 2.67 44018 
1882 1.55 2.24 3.43 6.72 5.52 5.71 3.43 4.96 0.91 3.40 1.48 1.99 41.34 
1883 «1.74 4.74 0.42 .3.72 7.32 5.61 6:53..1,21 . 1:36: 7.36, 5.20 9 5 SOReaa ae 
1884 1.39 3.27 5.16 3.05 1.53 2.11 3.71 2.50 2.29 -3:59 9 1.80 4e2 
1885 3.18 2.01 °0.57 4.00 3.17. 5.20/2.44.11°28 2.97 3.8% 2.353 7ob eee 
1886 93.56 1.51 1.79 1.29 1.00 0:94 -1.53°°3:38 6:93) 1742 ' 1 GO Rios 
1887 3.13 5.10 0.89 0.46 1.38 1.63 1.05 3.35 4.03 2.03 2.41 3.67 29.13 
1888 1:56 1.51 2.99 2.13 6.22. 1.66: 3.93 2.10 0.98 ° 2.95) 2.89) igaeesGess 
1889 1.64 1.31 1.43 2.35 5.38 2.938- 9.56 0,39 2.75 1.82 3.49°0 2 OUmegaags 
1890 2.98 2.42 2.10 3.23 5.13 3.25 2.57 2.58 1.39 4.20 1.59 1.25 32.69 
1891 1.99 1.95 2.13 3.14 2.09 2.42 2.47 4.52 0.32 0.36 3.83 1/32 526054 
1892 1.99 1.57 2.21 2.17 6.77 10.58 2.23, 1.85 1.34 1.54 2°63 Seg seen 
1893 2.08 2.44 1.69 -4.16 1.93 3.59 3.08 0.18 1.98 1.75 2.45 "2. Tas D7ea7 
1894 1,55 2.13 2.66 2.65 3.35 1.96 0.60 0.60 8.28 0.84 1.18 1.66 27.46 
1895 2.15 1.60 1.32 0:86 1.99 1.79 ©2:42° 6.49" 0.89" 0.51 * 5°60 Gs ieee 
1896 1.12 3.48. 1.26 2.79 4.16 2.82 3.61 3.52 6.70 1.36 2.16 Oc; lGmogen 
1897 4.53 2.22 3.56 2.23 0.84 3.60 1.47 1.70 0.84 0.18 3.06  T°G2eeearRs 
1898 3.54 2.59 4.60 0.76 2.23 5.380 1.94 3.03 3:16 3.26 2.25 1.11 33:77 
1899 0.58 1.60 2.11. 0.14 4.35 2.71. 6.66. 0:91 2.39 2.09: 1s 14S 
1900 1.21 3.52 1.58 1.02 3.59 2.06 4.64 4.24 1.56 1.35 3.30 0°58) 23765 
1901 1.15 2.05 3.38 0.33 2.18 2.42 4:25 2.00. 2.92 1.29 OSS yee 
1902 0.66 1.53- 4.16 2.26 5.08 6.45 5.78 1.44 4.83 1.45 2.03 L903 7e57 
1903 1.09 3.03 1.67 3.77 0.93 1.62 4.78 3.49 4.00 1.09 0.34 2.28 28.09 
1904 2.25 1.71 4.57 3.01 1.54,  .55..2.76 4.00. 2:65 1.53" Sie ee 
1905 1.33 1.95: 2.438 3.03 5.14 3.27 5.02 4.46 4.18 1:82 2.05° 0368ma5asG 
1906 «1.67 2:37 1.61 1.86 2.09 1.87 4.84 1.43 5:54 2:05 3.03 =2e4Geeagees 
1907 4.21 1.00 2.94 2.37 3.50 3.64 3.15 4.22 4.49 0.93 1.92 2.73 35.10 
1908 2.05 3.72 3.48 2.81 6:74 1.48 1.45 6.35 2.09 .81 2.67 SURI Seeeaeee 
1909 1:96 3.84 1.63 7.73 2.18 5.09 1.77-6:20 3.60 1.20 oS S40 aei pee 
1910 3.07 0.89 0.29. 3.84 4:67 0.91 -1.79 3:08 3.90 1.79 Ti3l lp a2eeGeee 


759 











EXHIBIT 67. CuicaGco HEIGuHTs, ILL. CooK Co. 
Year Jan. Feb. Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Yearly 
rn ee tLe sua 252% OUR AGO kee 
Dnlee.4s U.o5 4.54 2.0] 4.04 13:24 §.40 1.78 5.55 1.88 2.37 1.55 43.62 
reine 2.02 2.04 4.42 3.56 1,91 5.50 4.59 5.40 1°26 0:68 2.07 35.37 
ES is ad 8. iy) PURSES ae ON) tain MAS gh s bse fees 
EXHIBIT 68. FORT SHERIDAN, ILL. LAKE Co. 
Year Jan. Feb. Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Yearly 
eens 4 onl 400° 2°80; 3.20, 4.10 3,17 0.31 2.20 0.75 0,659 4.75 1... 
1890 2.68 1.84 2.33 4.82 5.25 7.77 1.25 2.47 1.32 6.02 0.92 2.27 38.94 
Peete lets, 2.25°°2,56 4,33 2.25' 5.69 1.94 3.75 0.48 1.55 4.09 0.90 31.50 
age 0,48 (1.81 0:95 3.57 6.51 10.19 2.54 0.86 -1.67 0.00 1.78 2.60 32.96 
ted 1) 91595 5.87 2.07 3:62) 3.77 0.10 3.62 1.19 2.87 1.61 29.79 
wg04" 2.94 1.45 2.01 4.70 4.01 0.51 -T 0.27 6.56 2.49 1.64 1.26 27.84 
Pee 10.32 0.45 2.50 3.70 2.600 3.30 3.81 4.88 0.41 2.14 220. cau. 
Pecpeeent OG aa.5d sacls 2.00 1.00 3.80 1.79 5.60 0.97 2.80 0.65 27.25 
ee eae lied Ue hablo k 4) 134 1.52. 2110000 25 3.53 1.51. 26.82 
Pee oon Dien lowi.oo. 2:430:2.50. b.65- 2.86 2.48.753210 1.44. 0.91° 27.41 
309) 0-52) 1.26 2247 0227 6:04 2.53 2.91 2:05 2:76 1.85 2.40. 1.31 26.38 
Dale te erent Pima Seles ees at ees rere ye i, 
EXHIBIT 69. JOLIET, ILL. WILL Co. 
Year Jan. Feb. Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Yearly 
een te er eee ee 982,00 2.47% 2.71 2.96 22.99 1.85 3217... :. 
eee SOU bomee yh ieee OU e110 0500 6.00. 0.905.308 on eo cnt ce are os 
ee ee ee Pe ee ass Vets es 187-1257, «.... 
ipg4eeloiGe Jo) 2:87 2.23 3.69 2.84 0.46 0.85 5.99 1.18 1.68 1.00 25.26 
teugeeene 0.07 «1.04 1.92 1.95 1.26 4.32 2.96 0.93. 0.67 2.90 6.62. 27.06 
Devoe wae 2 Ui 1 1b oe2.G2> 5.20 3:89 4,97 <2.75 .6.69.10.86. 2.96 0.36 .-34-94 
Pereeeedieelso4er3 . S0rr2.07 shi2o, 5719. 1.59 0.55) 0,632.0.445°4:42. 1.68. 30.93 
£805— 4-05 52.28- 6.12 1.42. 3.82 7.89-.1.59 4.69 3.20 4.53 2.61 2.15 .44.35 
ee o2 0). 68 2.23 - 0:35 4:69. 2.17 .-5.26..1,.74. 2.442.39. 1.15. 1.70- 26.62 
Pie eos 4229 2-24 0.79 §4:27 1.80 .5.08 5774) 2:05 »1.61 3:10 0.53 33.08 
Pomeeless el 626 3002 0256 ~0)8ie-3.14--5.42 -2.84--2255--0..85--1.63— 2.36~..27.28 
Pee eoo 1.437 52510 2°36) 7248°12.86. 9:38..3:.15 6:28 2:44 2.99 1.68 56.11 
1903 1.05 2.92 2.22 3.62 2.49 1.68 4.46 4.77 4.98 1.40 0.86 2.18 32.63 
feast lid 4.97. 3,01 3.19 0.940 2,.971.03.19 4.95 1.44 0.10, 1.63...31.36 
eiometetow 1 .43.°2,29 4.13) 5.42 5.10 4.18 4.29 3.63 3.57 2.66 1.46 39.34 
mgmeyooees OO — 126) 1.67 2:00° 1.85 32.5 4.00 5.68 92-76:.2.63. 3.13. 32.37 
Peer Uroe o.00 20.28.3132, 71270 5.38 4.66 6213 .0.66 1.86 3.07 38.08 
Demeter ieea,G0 74.50 -Os02 © 6.95, 91-30 0.19 3.80" 1.32~'0 82) 2:77 ~-1-30- - 33-13 
1909 -1:12 °3.38 -1.56 6.60 3.46 .3.80 1.69 .2.95 3.09 1.68 °4.55 3.50 37.38 
Pmeeaeoe et.) 0.24 13:81 94.90 0.8) “1,46 3.17 2775 91.68 70.62 01.12° 24.29 





Remarks: From Noy. 1893 to April, 1895, inclusive, the values are for Braidwood, 19 
miles distant. 


Apr. 


orb. . 
fo in 
Ge % 


WOON Nr WNWrRCCOOFrW He - 
SPN PorPOonworOWr ObNFr:- 
IDF OUOrR NR ONTOORP Ors: 


Apr. 
iN) 


Apr. 


EXHIBIT 70. 
Year Jan. Feb. Mar. 
1890 cay See 
1891 shi ey 
1892: sce e835 (2520 
1893 -1.91 91.7980 2315 
1894.) 04 sLei2. eee 
1895 1.64 0.45 0.85 
1896 > 6 2539) 1204 
1897 6.09 1.83 4.00 
1898 4.30 2.60 5.87 
1899 "0537. #8) S206 
1900 Sl oe osm coe 
1901 eel 40d eee 
1902 0.53 1.34 3.19 
1903 0.86 2.90 2.51 
1904 1.65 1.56 5.30 
1905-0272 =1806 S1258 
1906> “1261 925502250 
1907, S277 0.40 227) 
1908 2 24)- S340" 3520 
1909 -<CG8= 3273: 1342 
1910. 22350283 0.05 
EXHIBIT 71. 
Year Jan. Feb. Mar 
USRG Ree tae eee 
1887 3.84 5.43 1.06 
Toss. “15¢0a B0scac56 
TBS. gh Geet, lene 
A800, 2.7608 ad weeo 
BX HIBET 72. 
Year Jan. Feb. Mar. ~ 
1900 00 
EXHIBIT 73. 
Year Jan. Feb. Mar. 
1900 1.41 3.45 pt ee 
1901 0.70 1.45 3.98 0.69 


1902 0.45 1.14 4.76 2.89 


756 


LA GRANGE, ILL. Cook Co. 


May June July Aug. Sept. 


— 


ON ONN OF KF ODOWOWrFR PNW WNWC. . 
Reo Dr OGInNPrR ONTO nwOonnworeNWOC. 
WHEDON ATNTODWOWOUWKH ONO. . 

Awe 

oo 

oo 


LAKE ForREST, ILL. 


May June 
4.05 
2.01 
4.29 
4.60 
5.08 


2.27 
1.00 
2.68 
4.21 
5.29 


LAKE VILLA, ILL. 


May 


MORGAN PARK, ILL. 


2.96 


Cr OO DONC: : 


Pw PNW WWH- NAWOONWh-: 


bo Ot Or OO. 
CO eB O&O or. 


July 


0.54 
1.55 
1.89 
4.77 


June July Aug. 
S118 


0.23 
5.69 
1.57 
4.59 
2.18 
4.81 
2.00 
2.08 
3.06 
2.65 
5.53 
4.28 
PYRG 
6.45 


BW OOM RP WOTOTW Rr WOOF CObDre. .- 
WOnwP ATR NDWOOoodsIOOWr COs: 
OMDONVCOOCKHKOOIwtovunooenfo: 


Aug. Sept. 


6.65 
3.63 
3.46 
OTE 


4.88 
4.47 
1.50 
2.22 


Sept. 
1.86 


Oct. 


KS ORM NRK NKR NHR OCOFC?C: 
EFWWOONOAINMODBDHOnwwonrooc: 
EPP OCINTLOOOON Rr WONTRDNF: - 


LAKE Co. 


Oct. 


1.37 
2.97 
2.57 
2.40 


LAKE Co. 


Oct. 


CooK Co. 


May June July Aug. Sept. Oct. 


0.85 3.35 
7.84 10.70 


5.71 
6.58 


1.24 3.68 
2.47 


1.35 


Nov. 


CONF WrRNOWWwWorFNWh- 


NORE ONNWROWUNMAwWoOOAND: 


Woo ueo sl 


“OPW WONWOCOD FS: 


ee bor db bo 


Nov. 


1.47 
2.10 
2.86 
2.45 


Nov. 


Nov. 


1.42 


Dec. 


KS Re NOOCONNRK ORFF OOONF - 
Dr WOW KhDOWWWOUWreE ONCOL: 
CODD PK DRDO WOKrWNWNWHDMORKr OW: 


Dec. 


vay 
4.04 
1.69 
2.66 


Dec. 


Yearly 


Oe Bee 
PY ge ae et 


se eee 
eee 


oe oe Dn 


eee ee 


eee ae 





797 


EXHIBIT 74. RACINE, WIS. RACINE Co. 





Year Jan. Feb. Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Yearly 





Pe en gen. 0.0L Jen Ave 1.02 0.22 7c7) -1.80'° .64 °..... 
Pipe e) oe. oe 4.01 3.96. .87 3.4) (1.93- 2.47 1.29 6 1.92 1.35 25.86 
Siesta oooh oto 1.04 1.8L 27484 (3.24 9720 (2.90 3.13 91:29 —.53 29.11 
foro.) (16690) CSL 4289 Slt 64:26 31.08 <4.25 “1.394 (2.17 2.04 25.55 
Papeete eed) 1.20 483 1.75) 2.21 (6:66 .5.65 1:82 1.87 4:19 ~ .34 31.18 
Meeeeees ii.oe 3.49  .so 2,09 2.25, 286 (1:41 3.82 86° 187° 1.29 20.00 
Pelee era 2.0) 92 5:77 5.40 6.8/7 | 245. 6.80 1:39 2.19 2:20 36.06 
Drees elolt) 2.1). 2.10 .2.99 3.0) 3.23 4.76 4.20 (1°39 273 * .76 28.88 
pee e425) Li) loo 2.00 d.00 2:02 2.89 1.47 (17 1:80 25.27 
1905 .93 .85 1.96 4.05 4.49 3.74 3.45 5.56 2.37 3.48 2.02 1.15 34.00 
1906 2.46 1.94 1.59 1.61 1.50 2.46 1.04 3.85 7.30 2.25 2.92 1.44 30.36 
1907 2.99 0.57 2.98 2.53 4.29 4.45 4.79 4.06 4.87 1.02 1.24 1.75 35.54 
te ele4s 2.99 .2.48 4:13 5.29 2.68 9:52 1.80 1.22 1.30 2.15, 0.90 29.54 
1909 2.50 2.24 0.60 7.82 0.83 2.42 2.34 2.90 3.48 0.67 3.00 3.50 32.30 
ieee O.g0 Uc72 2.66" 3.18 0:90 0.45 2.246 147 2:18) 1.77-..0.26° 17.75 





EXHIBIT 75. WHEATON, ILL. Dv Pace Co. 





Year Jan. Feb. Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Yearly 
Secgmeee eee ee eee 2.09 6139 3.47 4299 21.52 61516 1.5500 5:78 


Pappa 09 2200 2.11 94.50 07 «2283. 5.14 2.48 9.09 9.53 3:78 9 255 941.47 
Peeree ect 62.21 (o.40 4260 91°02" 4.22 3:09 91.11 1.105 .49 2.97.99 33.66 
1898 3.67 2.20 6.04 1.31 4.20 6.03 1.90 5.69 4.65 5.13 2.34 1.86 45.02 
e000). 74 91278 2.36" Al 97-15 1.39 6.66 1.96. 2.21 92.12 1.41 1.86 30.05 
1900 1.43 4.09 1.66 .93 3.33 2.84 3.97 3.53 2.39 2.29 2.77. .60 29.83 
1901 1.42 1 es ee, SR sd eS PA es. | AR 





EXHIBIT 76. COLLEGEVILLE, IND. JASPER Co. 





“Year Jan. Feb. Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Yearly 


ree ee eee theo 2.00 2s] 4 erese, 
tse er. 07) 3.00 3.92. 3.66 8-91) 1.90 3.63. .2.66. 1-37 . 0.82. 2.61 . 1.62 °35.17 
1909 2.29-7.16 2.77 5.76 3.38. 5.42.5.02 6.97 4.26. 2.62. 4.20 3.21 53.06 
1910 2.85 2.45-0.98 2.98 6.40 0.96 4.95 5.40 5.03 2.35 1.19 1.75 37.29 





EXHIBIT 77. GILMAN, ILL. IRoQuols Co. 


Year Jan. Feb. Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Yearly 
nM Oe ee OR ie ee od) oo mes eee a Ol IB val 
Jn Ge Bie ied POS aes Udi Lo heel ced 00.01) 03 mio 740 etl el (eo 280.1791 + 29.43 
eC rere OS SO Gre. Me ES. AS. cles RE aes Se whw Plans NOS oe 








708 


EXHIBIT 78. HOoPESTON, ILL. VERMILION Co. 
Year Jan. Feb. Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Yearly 
1902) al cee Bee pee pe ee 14.37 4585912580 25,01 100-2 oes 
1903 1.94 3.03 0.64 6.45 3:77 1.84 3.85 5.78 1.64 1:92 1-80 (2=ayeeaaeee 
1904 5.20 2.16. 7.36 2.61 2.35 1.87 4.36 2.81 3.91 0/38 "O.08 toes 
1905 61.76 2.77 1.24 3.91 4.53 2.15 3.81 3.75 5.00. 2°82 22eae5 et eee 
1906 2.52 1.52 4.46 1.84 3.58 L.57 2.34 7-87 2°31 31.50 95.05.9507 eee 
1907 5.89 0.22 4.26 2.90 3.28 5.34 6.48 2.08 5.09 0.94 2.27 3°88 saga 
1908 1.41 6.23 3.64 4.45 8.07 0.86 2:19 1.11 1°79 0°33 (278) Sree 
1909 2.87 6.88 1.76 -.45 4.24 4.18 6.07 5.28 2.33 2.10 “S247 (37pieeeoeee 
1910 2:99: 1.86 -Q:46 2.46 .5.38. 1.73 (4.66 2:23 5212 (02) (O78 0e27 

EXHIBIT 79. HOSPITAL, ILL. KANKAKEE Co. 


Year Jan. Feb. Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Yearly 


1886. ..24\0 sa%Ge aes cuieen NOMA cEegies shang ate ete 00 easgte ee ieee nn 
1887 1.45 4.50 0.68 0.90 1,93 1.75 1.10 2.65 .... 1.20) (]o eee 
3 <t En eee mmr bell by Brg. tees ERA Sr Oy at woo SL DO eee 
1889 1.54 1.02 elie és soe ee aL, 
1890 ee S. week ilies _. ; sr! 3! gees 
er ete ee cee rees ee a 
~ 1892 ce ee Cnet Sate 10.0994. 67992251 92924-52203 0.86. 2295 
1893--- 1.00-0.38.~.1.1380 .5.45...4,.83. 1.28... T) 20255. — 1.69 “1°70 
1894 2.35 1.67 2.04 3.54 3.29 1.11 0.85 1.30 “8,44 10.50 92.20 02 Ueeeeee 
1895 1.00 0.19 1.02 “2.81 2.64 1.11 °2.53.°2.61 "1,79 91.52. 33 0200. 6 eee 
1896 1.09 2.00 “0.53 1.93 5.53 5.64 97.31 94.99 5.82 -0.48 1:95 902h7 eee 
1897. 3.23 1.07 3.09 1.99 1.51 93.32 2.15 0:26 0.20 91.60 33:03 ee 
1898 .... .«:. (7,69 1.81 °5.66 1,72 91.69 4.20 5,80 34.18 62.3300 2) ee 
1899 1.20 . etd 0741093590 251)" 3118 Seem ene 2.00: “ucks see 
1900 =. 2 ae fonee ya : oe 
EXHIBIT 80. KNox, IND. STARKE Co. 


Year Jan. Feb. Mar. -~Apr. May June July Aug. Sept. Oct. Nov. Dec. Yearly 





1897 ws eee aes. 1.90 82.20 94530: 92.509 1-80 9. oe. 1 180 930 ee 
1898 2:70) sew Hees 1.309200 0 aes aks 25 00 We 
1.) er ew Me ee ee 
he Soe nr ame ee 
A) rahe mm oe oe Ee 
1902 secs cea Meds, eects Bites gM Gites “See betas) pie iene 
1903) vs Ase tel Ae eS Bis eetoaoeeee Jvc) Osis > ee en 
LL er kn Re Me 
905° ek Sars “ape Gee ee re 20 ae 
1906 3.57 1.16 .2.81 2.69 2.45 3.94 2.34 3.18 1:51 2.70 4.78) S4eldieaoes 
1907 4.17 0.23 5.47 3.57 3.02 4.20 5.37 ° 4.22 4.34- 1:87 2:37 BS 00eas cas 
1908 1.75 5.57 3.87 3.42 6.94 1.65 3.10 3.42 1.19.0.34 3.16 eb2oeeaaees 
1909 5.01 6.57 2.15 6.00 3.26 4.44 4.01 5.70 3.41 2.61 4.44 2.93 50.53 
1910 - 3.07 -1.61 0.51 4.73 5.07 0.56 3.00 6.19. 4.17 2:78 “1320 ieAgeeaead 


EXHIBIT 8&1. 


LA PoRTE, IND. 


799 


LA PorRTE Co. 





Year Jan. Feb. Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Yearly 


ee 


3.34 2.51 3.43 
2.69 3.64 2.01 


1897 
1898 
1899 
1900 
1901 
1902 
1903 
1904 
1905 
1906 
1907 
1908 
1909 
1910 


EXHIBIT 82. 


Year 


1896 
1897 
1898 
1899 
1900 
1901 
1902 
1903 
1904 
1905 
1906 
1907 
1908 
1909 
1910 


3.53 
2.06 
bal 
2.75 

. 96 
1.58 
2.66 
2.09 
2.66 
3.60 
2.29 
2.15 
1.84 


Jan 


FE RWONrFOFrOrWWwW: 
Iowmoonwuosnwko- 
COON Dre NOOWOR NAT eer: 


bo bo 
or oo 
(>) San) 


Remarks 


mOrRDrFDOrF KER OFF - 


bo WwW COR RR WW DmOwWre bh: 
orRWOsTIANNOFKR ONC OI}: 
NOON COCO K NOON N Fr: 
Orr KR NW NWKHR RHR NWH- 
mOoOorhw RATAN Owsi- 
oonorr-ocrnwNocn”nror80: 


Feb 


S 


SCHWUNSCBOMWUMWOW-: 
NROTINOSHOSoOOH: 
CON NOW PEP RWN RW: 
ROUND MNNIONMHOMHWweo: 
NOOHDRODORAONKROSD: 


eS 
Sow 
~I co 


2.35 
1.12 

83 
1.29 
1.34 
2.25 
5.30 
1.37 
3.04 
Lote 
4.01 
2.98 
5.39 
3.48 


Poa 
— 
— 


NP PWD WWATWrr Orb: 
NOW MNOONKFE WWWHY Oh: 
SOOT AWDnwooartir Ooo: 


4.47 
2.14 


MARTINTON, ILL. 


1.78 
5.66 
4.02 
4.22 
2.19 
4.51 
4.67 
3.92 
8.93 
4.25 
2.86 
9.95 
2.95 
4.47 


. 60 
1.82 
2.49 
8.68 
2.06 
1.25 
Dall 
3.46 
3.78 
1.96 
5.52 


4.44 
2.65 
2.22 
2.33 
4.76 
12.53 
3.33 
1.68 
4.38 
3.17 
4.04 
1.65 
4.27 
1.25 


3.35 
5.47 
3.36 
5.01 
5.73 

94 
4.01 
3.51 
4.49 
2.62 
2.79 
0.88 


1.67 
eel 
2.99 
4.34 
1.85 
6.29 
4.34 
2.03 
2.68 
6.02 
5.65 
1.24 
2.45 
4.36 


56 
3.10 
1.07 
5.51 
3.71 
2.40 
4.05 
3.04 
3.20 
4.65 
3.13 
2.92 
3.32 
3.53 


3d 
2.56 
2.76 
1.63 
2.82 
5.26 
4.79 
3.10 
4.92 
2.26 
6.60 
1.44 
2.24 
3.63 


; : ‘ . May June July Aug. Sept. ; ; ; 


3.25* 4.42 7.02 


3.62 
1.28 
4.03 
2.19 
5.10 
3.15 
2.37 
3.88 
3.24 
4.91 
fa19 
6.62 
2.86 
7.31 
5.80 


5.50 
0.29 
DaLe 
2.30 
2.09 
1.82 
6.84 
2.40 
4.81 
yar 
4.59 
4.17 
2.60 
3.82 
4.50 


6.95 
42 
.84 
19 
38 
90 
22 
27 
56 
.90 
.86 
1.40 
2.54 


Re OR Re eS eS Re OO 


TROQUOIS Co. 


Oct 


0.25 
0.61 
4.36 
old 
1.82 
2.90 
ary. 
2.54 
1.23 
2.10 
1.80 
0.65 
0.67 
3.35 
2.87 


Nov 


t.98 
5.71 
2.81 
1.84 
5.78 
1.10 
3.37 
0.79 

.09 
2.68 
3.25 
2.70 
1.58 
5.53 
0.26 


o 
3 


FPDP ORR ODWOWF hb © 
HEHrROMRODONWOKRGMHODH 
DODWBDOOMNOKFONK COW 


Yearly 


©) Oiler a) .0 


: *15 to 31 only. 


EXHIBIT 83. 


Year 


1894 
1895 
1905 
1906 
1907 
1908 
1909 
1910 


Jan. 
2.14 
2.57 
3.13 
1.24 


3.25 
1.66 


Apr. 


2.23 
2.30 
2.30 
3.38 
3.29 


4.94 
4.22 


PLYMOUTH, IND. 


May June July 


6.07 
1.43 
2.75 
2.74 
7.41 


3.05 


4.54 


1.82 
1.81 
5.07 
4.40 
2.06 


4.49 
0.76 


3.50 


MARSHALL Co. 





Aug. 
P26 


Sept. 


6.43 


Oct. 
1.34 


wOnmnor thd: 
ebro b we: 
bP OOnmn: 


2.32 
3.32 
se 


Dec. 
Shays 
1.95 
Ben 
4.60 
1.74 


3.28 
1.99 


Pier ee 


oe 0 6 6 





760 














EXHIBIT 84. RENSSELAER, IND. JASPAR Co. 
Year Jan. Feb. Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Yearly 
1808 eres aoe aoe 1:90? "1250" Sete 
1895 1.85 i on ro ram Se 
1900 ops .:.. 4,05 4.40 °3.80 2.50.°1:30 _.70 4:00 0 ee 
1901 2.10 1.27 4.02 1.30 .... .:.. 2:40 .... 1:75 4.38 1990s 
1902 1.03 1.81 3.23. 1.93. 2.81 18.90 6.47 1.56 4:20 1.52 32067 2o7o eae 
1903 1.09 3.49 1.30 5.94 2.69 2.34 4.85 5.11 2.73 2.46 1.13 2.81 35.94 
1904 4.22 2.33 5.91 4.25 3.14 0.52 3.28 2.97 3.65 1.14 0.29 2.39 34.09 
1905 2.10 2.10 1.59 3.86 7.93 2.77 3.80 3.00 3.69 2.36 2.51 “1i4e ae 
1906 2.35 1.22 2.98 1.85 1.95 1.76 3.97 5.80 2.80 1.79 4.30 4.06 34.83 
1907 4.83 ..08 6.37 3.42 4.40 3:75 5.50 4.18 3.10 0.73" G0 eee 

Remarks: 19 days only —P; 22 days only —* * 28 days only. 

EXHIBIT 85. SoutH BrenpD, Inp. St. JosEPH Co. 
Year Jan. Feb. Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Yearly 
1874 .... 2.88 3.58 1.35 2.04 4.50 92710 
1875 2.20 3.00 2.00 2.10 3.65 1.92 1.50 .... 1.05 3.10 1.10 3.00 ..... 
18762 622) ee ee xs Pima .. 0. oe 
1803 eee es ve ceeds) Rhee — Warten, ale wins” By ng, eyelets pan 
1894 1.68 2.08 2.49 3.57 6.15 1.92 1.66 0.51 4.88 1.80 2.80 1.09 30.63 
1895 3.77 0.82 0:75 1.06 1.30 1:48 1.59 -2:35 1.22 1:49 3°84 spe2ieeeaeee 
1896 1.04 1.77 2.28 2.35 3.01 3.81 7.45 4.79 4.92 0.98 2.69 0.37 35.46 
1897 5.53 1.79 -3.31 2.52 53.09. 1.65 1.75° 3.65- 0.23 (0.71 4.609 acon 
1898 03.52 2.66 4.47 1.01 2.97 3.41 1.94 4.11 91.81 ©6.56 Vo: Gl ze zoe 
1899 2.01 2.18 3.81 0.80 4.52 1.63 2.64 0.66 4.05 3:70 1.5494 2o eae 
1900 0.87 3.97 2.46 1.17 1.74 2.66 5.81 96.43 92.25 1.31 95.2030 G2 
1901 2.51 1.88 4.32 1.67 1.96 3.01 2.25 2.46 1.42 3.95 2:00 SocoGseaee. 
1902 1.16 1.45 3.85 2.38 6.94 97.39 4.16 °1.58 (4.50 91.46 "O. 3596s. peers 
1903 2.91 3.33 1.86 4.89 1.25 5.52 6.43 5.21 3.72 247 1.43 33 .200azese 
1904 3.76 2.40 5.51 2.92 3.95 1.16 “2:38 ~3.00 92.11 72:12 9073 7 
1905 2.85 1.61 2.59 3.99 6.46 2.44 5.47 4.96 3.93 1.25 2.22 1.50 39.27 
1906 2.42 1.28 2.98 2.08-2.21 4:36 3.56 4:08 91.13 "3.77 “Ssb/ Ogee 
1907 3.42 0.42 3.91 3.76 4.13 4.83 5.10 3.48 4.82 2.48 2.36 4.92 43.58 
1908 1.54 5.51 3.74 3.38 7:17 2.74 1,96 1.68 91.15 0.33 92220 nu 
1909 4.46 4.64 1.66 4.96 3.34 4.59 3.23 3.68 3.00 2.12 4.68 3.40 43.76 
1910 2.91 1.89 0.43 2.97 4.33 1.42 1.53 2.82 6.31 4.66 “1225 @2253eeeeeee 

EXHIBIT 86. SYRACUSE, IND. Kosciusko Co. 
Year Jan. Feb. Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Yearly 
LSODn iets nee seen weed ghee cweee) wey en 58" 91.50 47 
1896. 1.35 1.55 .... 2.51. 3.43. 2:04 8.83. 5.19 4.54. .59 02 49 eae 
1897 4.56 1.57 4.38 2.28 3.56 3.58 1.47 4.30 .20 2.81 5.26 2.30 (36:27 
1898 3.48 2.60 6.33 1.16 4.79 2.98 4.48 3.02 2.75 5.30 4.21 2.20 43.30 
1899 2.67 2.85 4.06 1.62 5.42 1.98 4.32 1.89 2.71 4.60 2.40 3.47 38.05 
1900 .79 4.61 2.90 1.83 2.58 3.70 4.90 4.20 2.04 4.05 6.68 .76 39.04 
1901 3.39 2.68 4.41 2.34 2:10 2.16 2.70 1.05. .77 6.85 1.59°> aap eaaoe 
1902 1.08 2.37 3.34 1.74 4.50 8.76 6.27 2.70 6.30. 1.61 SA8M3elteeeeeue 
1903 1.51 3.99 1.69 -4.94 1.73 3.24. 4.80 4.83 3.81 3.13 91. 860eseU2eeaeeee 
1904 5.46 3.70 6.57 3.76 4.09 1.26 2.13. 6.79 3.34 2.51. OD 1etsIgeeee 
1905 2.28 2.00 2.32 4.93 6.29 5.11 4.25 .5.24 3.88 4.04 2.82 2.21 45.37 
1906. 3.57 1.12 3.43 3.26 1.51 5.81 3.77. 2.04 4.12 2.64 s3.7aeo erm 
1907." 4.98 _ OT. 33,623. Gaede Oana eee, PPh es 

Remarks: * 14 days only. 


761 








EXHIBIT 87. VALPARAISO, IND. PORTER Co. 
Year Jan. Feb. Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Yearly 
te mee 05 4.00 witli) eeu LeD0 bee O00 deol L.Od basse 
1891 72.09 1.95 1.97 2.78 2.00 2.42* 2.47 4.50 0.34 0.39 .4,14-2.41 27.46 
eet 90 1,06. 2.02 §2.05 ~5.70 10.73. 2.38 1.90 °2.00° 1.00 3.00 2.00 «36:74 
15 2-00 3.00 2.25 4.16 3.00. 0.20°0.81 0.20 2.68 3.45 1.45 1.80 25:00 
0471.70 1.90 2.60 2.70 6.60 2.70 2.00 1.30 8.70 1.24 2.93 1.80 35.67 
3951.95 1.30 0.30 1.95 1.91 -2.30:4.71 3.32 - 1.99 - 0.53. 2.55 7.66 30-47 
1896 1.15 2.75 2.45 3.34 6.42 4.34 7.56 6.40 4.95 1.17 -3.34 0.44 44:31 
Saoree 0, eos a.00 2250 5.15 -3.95 1.10 2.10: T 2.00 3.16 .0.61 30:46 
eet 2 1.20 © 5.409 1.0t 3.60" 3.55 3.00 4.00 2.51 -7.00 0.60 0.60 34:38 
eee ee55 0-50" 0-95 40-30 3.80 3:00: 1.50 —T. 1.50 3.55 0.85 - 1.60 . 18:10 
eee et 5, 1200 1.00 @4.00 ~ 3.00 “4.50 -6.00  T 0.50 ° 0.80 0.20 24.05 
ponies 70 eosl0 4:25. 2.00 -2.00 .2.42 1.49 1.06 1.76 3:38 0.86 1.84 23.86 
Roeser Gs 8.83 °2:79-°1.61 9:50 5.007 5.51 3:77 5.17 1.56 3.06 1.96 41.64 
Pie ete) © 2.74 +182 §4:50 2.43 1.32 8.46 °3.95 4.00 1710 1.68 2.56 35.67 
ma 2-48 1,70 4.98 4.67 4,45 1.71 1.86 2.80 $3.19 =1.12 0.53 1.43 30.92 
Petee eos 4, 263i 8342 97.38. 0.72 4.85 2.95 3.978 92.00 1.13 1.68 39.33 
Mage -o254 91:82-:2.59 2.09. 2.37 -..:. ca a ela FP ae Bd 
EXHIBIT 88. WATSEKA, ILL. IROQUOIS Co. 





Year Jan. Feb. Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Yearly 








eee Bee ee, eee roel 3.70 \2.11 4.45 6.65 «1.36 44.02 22... 
feng 00 81-75 92:04 «2.305 15.38—3.40 3.06 .3.75 5.23 0.62 1.49 1.42 32.58 
eee es Be Uses ls ee.) 22.05 92.12 53.37 ° 2.74 1.652.590 -4.11 30.32 
iene ee 61.50 62.50 2.41 94.96 4.43 2,49 0.61 0.50 2.36 3.20 1.92 29.43 
Pegeieso1 70 1.6500.28 6.40 -5.65 6.54 2.01 2.71 -2.68 3.15 1.53 36.69 
Set 70M) 017) 85.05 00.60 aD.ot 0.1, 1-01 ¥2.10 2:08 98.73 81.56 es. eee.. 
ESOT daca: Ed re ee ee ee er 
ee eee O60, 87.5380 .4)) 20.98 boo 2.42 62.51 20.52.1.95 1.44 «2... 
er eee OOS AR BL .AO. ten kd Pods atin Bi aSedtie. Wade, Soses- 
(COS (a aoe Ry. RAY FS ahh See. Ras) ofS ot. 
EXHIBIT 89. WELLINGTON, ILL. IRoQuors Co. 

Year Jan. Feb. Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Yearly 


Seemeeereeeer. -4.i2-7 iso) 81.20 — 2:92 1:99 3.56 ~SF4l ~ 2.80 1-06 ©2113: .... 
» 1902 0.80 0.57 1.88 1.027 4.71°10.49°°2.44° 1.90 3.53 1.55 1.94 .... 


oe eae 


EXHIBIT 90. WINAMAC, IND. PULASKI Co. 


Year Jan. Feb. Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Yearly 


1898 3.45 1.79 1.82 5.19 3.48 3.44 4.84 3.53 6.17 4.13 .82 43.66 


5.00 
feces 64.56 0.59 5.05 2.97 3.15 0.57 2:46 3.16° 2.01 2.40 ..... 
1900 .07 2.45 0.74 1.40 3.74 3.75 6.58 3.06 2.09 2.02 5.58 .01 31.49 
boot 1.4/7 1.65 2.48 2.04 1.16 2.41 .50 3.29 1.08 6.06 .85 4.76 27.75 
eee es... «83-89 «1.04 5.67 10.94 5.59 1.49 3.65 2.60 3.87 .... ..... 
Meee 0.00 1.15 6.52 3.26 4.24 4.18. 3.76 4.55 4.02 1.05 1... ..... 
eee 3... 2.2. .4.68° 4.23 0.88 1.80 2.64 5.13 SEMEN, | 5 oe 


Se, 8.53 7 5G 4.46 9.32 9.12 3076 2.72 2... oc... on. 


re O16 © 





EXHIBIT 91 
Year Jan. 
185 ]* pe ce 
1858 2.19 
1859 1.82 
1 S607 ge oe: 
1861 1.05 
1865 1.20 
1866 1.97 
1867 2.45 
1868 0.90 
1860 ‘32 )'r-. 
1870 5.48 
1871 £. 
1872 ° 0.35 

BA873 5.34 
1887 4.36 
1888 1.40 
1889 2.06 
1890 3.24 
1891 2.35 
1892 1.53 
1Saeec cor 
1894 2.96 
1895 1.53 
1896 1.21 
1897 6.93 
1898 5.17 
1899 0.55 
1900 1.68 
1901 1.39 
1902 0.47 
1903 0.83 
1904 2.12 
1905 0.93 
1906 3.10 
1907 3.69 
1908 0.81 
1909 1.43 
1910 se4.00 


Feb. Mar. 


05 6.86 
5 1.92 
0 3.04 
5 
7 


re bo 
on 
Oo 


— 
bo 

NOW W PRN NOR FPR WWNNNRWe.- 

COOrR KF NODONRrRrWNODRRrOC-:- 

De PR WD COTO BAT OON KR ATO: 


Ou 

bo 
Ww bo 
mee OO 
“I bo CO 


80 3.58 
57 1.34 
"82 0.36 


Apr. 
5.19 
2.28 


1.58 
2.33 
3.93 
0.82 
2.08 
2.63 
2.17 
3.94 
3.59 
5.81 
2.49 
1.48 
4.17 
2.88 
1.49 
0.49 
0.78 
0.39 
2.16 
4.23 
4.21 
3.85 
1.57 
2.00 
3.10 
8.38 
3.96 


762 


Aurora (No. 1), ILL. 


May 


6.83 
2.69 
4.57 


June 


2.32 
3.41 
3.00 
1.63 
4.75 
2.20 
0.58 
0.98 
4.38 
6.97 
3.24 
12.83 
3.64 
1.87 
1.66 
2.62 
5.30 
5.86 
1.59 
2.94 
1.81 
13.19 
4.09 
1.96 
6.16 
1.67 
3.70 
1.43 
4.71 
0.50 


July 


5.69 
2.02 
6.10 


3.21 
2.98 
2.28 


1.75 


82 


3.81 
2.72 


5.51 
4.50 
0.48 
1.66 


Aug. Sept. 


3.84 
2.52 
1.67 


KANE Co. 


WODWONONNANNORNHPONRFNNNORr WE 
bo 
eo 


Oct. 


4.40 
3.91 
1.53 


2.50 
1.21 
2.07 
4.63 
3.41 


0.90 
2.50 


KS CORN DI RFNWNRFNMWNOOOCOFR KF WrORF WW: 
(Sw) 
(=) 


Nov. 
2.01 


HWORNDE HEHEHE HOHE HOMOHNH 


Al 


se @ ee 


s+ eae 


4 a O\e, © 


se eee 


763 


EXHIBIT 91. AuRORA (No. 2), ILL. KANE Co. 





Year Jan. Feb. Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. - Yearly 
ee fe er ee oe. Uso 06 S16) 240.4017 IR70° 2:2... 
1880 4.08 3.55 2.25 4.36 6.10 3.91 5.63 7.46 3.22 2.14 1.03 0.76 44.49 
Peoeeetets 3.00 5.00 1.08 2.61 5.80 3:19 0.73 93.24 7.15 4.97 8.27 45.75 
1882 1.14 2.95 2.83 5.98 5.04 7.83 3.89 4.70 1.39 3.21 2.10 2.47 43.03 
Pram toe 7,2) 0.61 3.75 7523 3.50 4.44 0.95 1.57 “6:34 5.65 2.61 . 46.51 
1884 1.24 3.74 2.30 2.66 2.26 2.18 6.38 2.48 2.42 4.61 1.90 4.59 36.76 
Peso, 2-01 2.09 0:98 3:31 3.16 5:07 2:59 7.72 4.04 3.74 2.04 3.05 39.50 
1886 3.63 1.76 3.00 4.24 5.39 1.27 0.36 2.97 5.60 1.80 1.26 1.18 32.46 


oe eae 


1896 1.21 1.93 1.71 4.17 6.99 2.62 5.60 2.68 7.56 0.36 4.10 0.32 39.25 


EXHIBIT 92. CHEMUNG, ILL. McHenry Co. 


Year Jan. Feb. Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Yearly 


Pee eee al .oe 5.04 48.02°.9.06 «76 1:28 8.83 A.87'°2.27 ..60 s.. 
Peete. 2.18, 2.52 4.96. 2.11 °2.91. 3.06. 4.74 ©.66-.2.10 2.59. 30.25 
396, «90 :«1.93 3.48 6.78 4.18 3.18 5.10 2.27 8.56 1.06 2.52 .77 40.82 
Beep 2.00 1.7% 5.25 4.66 1.67 6.36 4.73 2.00 1.18 .84 2.37 1.40 37.29 
1308 2.89 2.73 4.25 2.20 3.71 5.97 2.54 5.66 2.72 3.41 2.09 .89 . 39.06 
bee fo 7b. 62 1.94 71209 5.612.227 4.95 3.05 2.29 1.44 2.71 1.98 °°29.71 
Pees. (3 1.49 1.96..1.78-.2.11 .4.73. 6.96- 4.67 2:57. 3.838. .95. 34.67 
W901 1.43 1.27 4.54 .A7 1.77 3.56 2.45 2:28 2.95 .66 .94 1.73 24.05 
ee OU Sota, 0. S0n 20> 6.54 1,06. 5.44 nsec es 





EXHIBIT 93 DELAVAN, WIS. WALWORTH Co. 











Year Jan. Feb. Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Yearly 


arn ree eee cry. 66570 7.40 -2:79 92:70 1.19 1:36 “2...? 
1887 4.05 5.34 1.85 .88 3.11 .51 3.83 3.63 4.29 2.47 1.21 4.60 35.77 
Beceem) 00240 4,505.04 2.25 2.25 Te eee. ad. GE. a. 
Seema ie earveo 1,50 82.00. 0620 “3:21 34.. 223. seen 314 1.69 2:09 2... 
Pogue ote 1.05 ¥.457'2.30 4.09 fol... RR AL es ae 
ee OL S09 2000 ee. Ue. was Tape tee. 3215 2.24... 
Seeemeee to io) 6woe 64,02 (7.20 4.83 5.41 3.35 1.97 0.84 1.60 1.16 ..... 
1895 1.26 .66 2.31 4.79 1:66 5.03 3.49 1.43 2.60 2.68 1.17 ~.84 27.92 
Pam 09 9-46 2.70 3.79 °3.86 2.92 1.13 .50 6.44 2.11 2.13 .40 27.53 
Revo ).00 140 1.27 1.09 3.54 2.63 5.33 4.12 2.938 .40 1.938 2:23 26.87 
Pee od © 659 1.51 3.75 «2244 “3101 8:30 1.44 82:79 79 1.42 .60 33.53 
Eeemeeesoy 1:00 2.97 4.87 1.02" 4°85° 2:32 1.53 1.11 (95 1.74 1.35 26.30 
See oe ett 5.03 "1.96 “2777 6:21 -2:59° 34:58 §2:80 4:55 1:11’ ..80 33.76 
Peyote. cil! t.o0 5.10 ~2:52 92:98 2.52 2.75 1:24 3.05 1:48 ...... 
etnasemiess std) i018 ~ 3712-059. 5.. “2:75 2-47. 3°98 273 07... 
ES OM OSre er ee ee i, eee mee 40) L600 ssp 
rene erst e290. So. 02) 12519 257 24236 26 ee OL laws 
ere al a. 320) 1544 °4576 § 6:49 95233) “S513 Seen oS cows 
natn gets apes Bag A trey reed DA fa aa Bn <a a a 
1905 : Ger heey ae ee 
a ere ce ee sy, Uhgtia eh eM nega” lew as “ge ph) cues 
Te oP ea ees ay ae od 4.00" Uoe f. G0) 123 o.... 
1908 0.80 1.75 2.55 3.75 6.22 3.67 3.17 1.97 0.84 1.08 2.22 0.94 28.96 
1909 1.83 1.54 0.73 7.60 3.42 3.50 1.94 9.80 3.58 1.05 2.95 3.45 41.39 
1910 1.19 0.41 0.12 3.24 4.07 1.24 0.92 4.17 1.62 1.27 1.96 0.39 20.60 


rr 


764 


EXHIBIT 94. DWIGHT, ILL. LIVINGSTON Co. 


Year Jan. Feb. Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Yearly 


1888 1.03 1.43 3.10 1.42 4.46 2.10 2.44 2.27 .40 3.26 2.53 2.53 26.97 
1889 1.47 2.82 2.23 2.12 4.24 6.34 6.12 0.89 2.92 1.79 3.10 «l./O0seanee 
1890 4.59 1.45 3.37 3.95 5.08 7.28  .°90 92.05 11.30 912. (og) eee 
1896 ..«» 0-13 4.61 2.61 45.09 0.64 3°54 SCR ee 


1897 5.384 1.46 3.57 2.74 1.81 5.25 2.50 1.60 .81 99.44 Sasi 7s 
1898 3.80 2.07 6.64 2.95 6.12 3.79 0.29 3.35 4.86 4.42 2.50 1.26) 142705 
1899 =.80 2.13 1.76 .70 2.08 5.07 4.73 2.29 2.57 2.31 92ig eee 
1900 1.76 4.50 2:87 1:09 3.72 2.99 4.49 5.03 1.99 1:69 3:55 9 0eeeaeee 
1901 1.60 1:03. 3.17 ..50 1.93 3.71 2.00 1.67 2.05 1.44 014g Zope 
1902 :44 1.48 3.82 2.10 5.72 11:53 7.52 3.62 5.36 2.09 “SEL eee 
1903 1.55 3.17 2.50 5.14 3.24)92.37 4..0. sce ees ee 
1905 ns. 0 aie. UD eee epi eh 
1906 2.99 1.76 2.15 2.06 2.07 2.49 4.84 1.85 3.80 1.54 2.80 2/64 "30°09 
1907 5.88 0.14 2.22° 2.56 3.13 2.88 8.85 7.30 6.34 0.45 2.02" 3°00 s4geaas 
1908 1.06 3:41 3:27 3.89 6:79 0.97 (2:61 “1.09 -1.22 “0161 "2203 see 
1909 1.73 4.29 1.79 7.13° 2.48 6.06 1.50 3.53 2.34 2.38 4.24 (2.06 s40cas 
1910 2.37 1.05 0.52 3.84 5:11 3:00 1:86 4.66 5.738 1144 (0226) 0e2ameeee 
EXHIBIT 95. ELGIN, ILL. KANE Co. 


Year Jan. Feb. Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Yearly 


1898 3.85 2.44 5.08 1.40 4.24 8.23 0.75 6.43 4.40 4.76 2.22 1.25 45.05 
1899 0.57 1.60 2.72 0.68 5.28 1.89 4.31 1.89 2.28 2.39 1°38 “1.G9eego7Ge 
1900 1.77 3.41 1:58 1.387 2:08 2.72 4.55 S215 92:35 ©2.80 9) 








190; “3 ee te ORT : : ; : : : » lon ee 
1902 duns Gaits. Ayecles qa oiic em eyestrain 
1903) nts ges segs tele Sellae Ghee ede 2 ee 
W904 on cc adn. ese ces» cunts Tau) sabe atetel Beg where mle ollgpwrp rege albanien a 
1905 0... fdas. Ovee. Ge SR GPee. See 8 OR ee 
1906 on... Had Sih GE. Be Revd! Gye. POR eis 
1907 4.49 0.72 2.57 2.21 wavw Seeds leek. Gal Qe 
1910 Ale. Gee Bee yee 3.14 2.87 2.97 1:21 M.15 Wet 
EXHIBIT 96. OsweEGo, ILL. KENDALL Co. 

Year Jan. Feb. Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Yearly 
W887 ness was ge. coe te Sue ge Wes eat pee. G16 Q] «2,90 22.29 62°03 9 51 eee 
1888 1.46 1.54 2.77 1.59 4.67 1.29 3.58 1.09 1.22 2.73 “S\2h eee 
1889 1.57 1.03 1.28 2.23 3.12 4.98 4.44 .75 3.44 1.00 52.83 eee 
1890 2.44 1.30 2.89 2.58 5.27 6.98 1.19 2.65 2.17 4.60 1.89 Se7oeeeeess 
1891 2.71 2.32 2.33 3.97 1.97. 2.93 13.07 -4.36 1.20 .64 4/4300 SOs eee 
1892 1.74 1.17 2.32 3.45 8.05 10.51 4.71 1.71 2.32 0.96 2710s eS eee 
1893 1.85 3.16 2.68 4.80 2.59 3.27 1.99 .22 2.88 2.28 2°25 0sespeeueee 
1894. 2.31 1.10 2.68 2.82 2.82 2.20 0.50 1.49- 7.35 1.34” [°79eOe7geeeeee 
1895 1.33 0.38 1.35 1.56 3.27 1.64 3.61 5.00 0.59 1.05 4.55 sG.ieueee 
1896 1.09 1.90 1.71 3.48 7.52 1.275 5.32 4.03 7.51 0.30 “2.3000s ies 
1897 6.06 1.60 3.56 2.36 1.19 5.19 3.63 1.77 0.86 0.15 .3071 Seen 
1898 3.86 2.59 4.11 1.48 5.50 4.51 2.23 3.75 3.81 4.32 2.81 Sie 2eedGeae 

OQ. 13° oh.67 7.28 sses este pede ee 


1899 2.70 0.46 1.50 4.83 2.27 





EXHIBIT 97. 
Year Jan. 
1874 3.76 
1876). 1:38 
1876 3.01 
iste. 72 
1878 0.85 
1879 0.85 
1880 4.14 
1881 1.54 
1882 1.57 
1883 2.18 
1884 0.80 
1885 2.32 
1886 3.60 
1887 3.59 
1888 1.24 
1889 1.86 
1890 2.65 
$891, 2.22 
1g92. 1.73 
Lees, 1257 
1894 2.24 
1895 2.09 
1896 0.61 
1897 4.45 
1898 3.89 
1899 0.44 
1900 1.48 
1901 1.38 
1902 0.55 
1903 0.80 
1904 1.79 
1905 0.82 
1906 2.73 
1907 3.67 
1908 0.77 
1909 2.50 
1910 2.23 


Feb. Mar. 
0.95 1.93 
19h 1401 
Bole cas 
N03 5.53 
Lesa, 2°72 
54 2215 
1.62 1.40 
5.28 6.48 
2.15 4.58 
4.61 0.89 
we20, » Lebk 
1.92 0.29 
1.61 3.68 
4.82 1.01 
Melt) 204 
Le? eek ob 
hoe 314 
1.65: 1.64 
baa" 1.49 
poo? 1.82 
bepoe ate 
0246) 1-32 
edo Pat sS8h 
1.49 3.87 
ae0se 4276 
P2912 65 
S12 vie35 
1,69° 3.38 
1243) 72231 
233. 3347 
1.43 3.98 
1469 2273 
1.96 1.94 
0.38 1.68 
2.63 4.66 
2,58. -¥E19 
0255 °0.24 


Apr. 


2.02 
2.33 
2.09 
2.81 
2.89 
2.30 
3.10 
0.98 
3.29 
2.00 
2.85 
3.97 
3.76 
1.55 
2.16 
2.48 
2.88 
4.05 
2.83 
3.71 
2.62 
1.81 
2.97 
2.59 
190 


0.76 


1.36 
0.26 
1.31 
3.36 
2.27 
3.31 
1.20 
3.09 
4.05 
1310 
3.32 


May 


2.04 
3.28 
3.76 
0.93 
4.25 
4.97 
2.68 
3.10 
3.59 
6.18 
2.56 
1.72 
3.13 
0.95 
4.48 
4.09 
4.33 
4.38 
11.05 
2.99 
3.62 
2.91 


769 | 


RILEY, ILL. 


June 


2.96 
5.26 
4.57 
4.83 
2.46 
4.81 
5.28 
5.62 
4.42 
3.92 
4.22 
5.80 
ede 
1.23 
0.81 
3.25 
9.64 
5.06 
LaeZ 
5.13 
1.22 
1.68 
3.02 
3.23 
7.74 
2.56 
2.43 
2.37 
6.83 
1.65 
1.52 
6.32 


July 


1.09 
4.24 
7.64 
1.96 
4.73 
5.68 
2.68 
5.88 
3.63 
2.94 
4.19 
2.07 
0.81 
2.70 
3.44 
3.44 
0.53 
2.40 
3.76 
2.32 
0.31 
3.43 
3.29 
1by 
2.27 
4.04 
6.03 
3.23 
7.78 
4.61 
3.35 
3.30 
1.25 
4.92 
2.68 
0.63 
1.09 


McHenry Co. 


Aug. Sept. 


15 
14 
02 
60 
52 
96 
24 
OL 
.08 
aly 
36 
.80 
85 
85 
23 
By 
.83 
95 
42 
45 
00 
94 
15 
24 
39 
36 
09 
Ane 
.00 
92 
32 
85 
.90 
3.55 
2.21 
6.25 
3.68 


BOTW DRA PRN WrORRF WOR PROUD WH DF RR Ww We Dd bo 


2.58 
(hye 
4.70 
0.21 
1.46 
1.20 
4.02 
5.47 
2.36 
2.04 
4.34 
3.86 


Oct. 


EPWOCTOCrFNORFROOrPNNNWHRHEONH KOO bb 
a] 
or 


Nov. 
1.48 


67 
90 
06 
30 
OL 
06 
52 
03 


09 
98 
87 


4 
74 
15 


34 
.06 


Vig! 
52 
64 


.00 
05 


82 
15 
57 
52 
20 
. 66 


KWH HS DOrFOODFNFKENFD DNF WKN KON REN OF DW 


27 


Dec. 


0.48 
2.32 
ere 


46 
AT 
15 


.00 
67 
28 
37 
13 
31 
87 
44 
13 
16 
71 
42 
44 
00 
43 
50 
76 
56 
42 
22 
30 


00 
40 
47 
.16 


eS SE OR Or OF ON OR RENO RRR WR NWR DD Or bo 


5.05 
0.80 


766 





EXHIBIT 98. St. CHARLES, ILL. KANE Co. 
Year Jan. Feb. Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Yearly 
1S0RP ns aes) wae eeee 2044 80" 2°55 4°35 2.02 0 
1896° 1.05 2.20 2.46 4.11 5.77 2.52 6.07 2.61 14.44 0.40 3.00: 0:61 45724 
1897 6.04° 1.99 4.37 3.47 1.41 2.69 3.41 1.67 0:60 0.28 3:36 [fae seaeess 
1898 3.73 2.89 5.29 1.03 4.07 4.55 1.74 5:73 3.87 5°74 1598" Ie Oieeiaeee 
1899 0.85 2.12 2.68 0.58 5.62 0.92 6.00 2.10 3.10 2:20 1.31 1.93 20041 
1900 2.12 4.67 .... ...% 3:27 4:58 3.72 2.2. 2:15" 2°36) decree ee 
1901 1.53 0.88 2.76 .... 1.51 2.32 4.72 1.01 2°38 [csi ioe gee 
1902 0.83 2.08 .... 2.11 7.90 7.36 6.85 2°67 6.65° 2.19 2°08) eae 
1903 0.54 2.55 5.17 4.04 3.71 3.08 6.89 4.83 6.60 1.39 1.06 1.94 41.80 
1904. 2.30 2.07-° 5.42 2.92 2.07 1.76 5.82 7.02 4.42 1.86 0.0 222besofe02 
1905 0.99 2.78 2.73 3.59 7.80 3.46 2.70, 4.25 3.23 5.66 2.42 I°74.0388g5 
1906 2.27 2.92 3:21 1.67 2.59 2.59 0.74°3.55 7.47 2.46 S710) Zeca aee 
1907 4.17 0.70 2:94 2:16 4.15 4.90 5.45 4.12 6.49 1°53" see 
1908 0.77 4.00 4.01 3.19 6.47 1.73 4.45 5.89 0.88 1.36 2.52 0.96 36.23 
1909 1.38 2.74 1.32 7.14 2.46 5.50 0:33 6.58 3.59 0°99 5°27” Soe 
1910 2.25. 0.90 0.35 3.81 6:43 0.74 I-77 2.99 2.88 1:10° 1740) Qos 

EXHIBIT 99. SANDWICH, ILL. D&E KALB Co. 
Year Jan. Feb. Mar. Apr. May June July Aug. Sept. Oct.. Nov. Dec. Yearly 
1874 5.385 3625> 32380 Sli 623886215) 0002 Salome eee sed SR ee 
1875. 1.65 2:20 3.07 5:20 3.94 2:08) 8:68 540° 3265 1.07 45307 
1876 5.92 6:63 8.77 5.26 8:17 22.) Tel6 68 E78 19" 320i cee 
1877 1.53 .... 3.86 1,78 IT.381 4:24 2:23 ©2380 $26 3232) 2:09 eee 
1878 670. VAT, 118 ech 1686. B.S 2810 ee ee 
1884. 1.45 3.48 2.08 .... 2.10 3:24 7.06 1.93 2:52 4395 1/46) 52350 
1885 2:85 3.05 (62 2.46 1.30 2.94 2.53 6:99 3:58 2:14 89  SeUseeagane 
1886. 4.17  .77 2.45 1.35 3206 1928 2.03 3:02 5:13 1°65. To4ee eee 
1887 4.55 5.4) 1.24 9.57 1688 1:77 4:74 3.79 3.62° 2:95, 20358 Scaeeoeeee 
1888 1.45 2:59 3.20 1:70 5:14 2:76 4.68 3.83 1.26 “2°95 3233) 2e3G eon 
1889 2.27 2.88 .87 3.15 3.08 5.40 3°67) 0:79. 3:12 1:47 2303) Deseo 
1890 2.59 1.62 32... St ee 754 6b 32> 2215 416" ia 
1891 2.52 4:13 3.80 4.70 Bib? 3:34 3218 3087 °1:62. 39 407bee2es eee 
1897" 168s i2575 fee ee Baran eral act 0 TP 

EXHIBIT 100. SHARON, WIS. WALWORTH Co. 
Year Jan. Feb. Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Yearly 
1892) we. eee ess «©2296 TAL 7-91 8:31 2:46° 2.23 1.81% OF8a eo eee 
1893. 1.71 1.94 2.39 5.99; 1.69- 4.22) 3.02 1.20 1.66 3.90 223hesieS2meee 
1894. 1.97 1.95. 3.65 2.734.538 G:117> .80' .80 7.12) 1:63) 2:38eeie eee 
1895 1.20 1.27 1.34 2.13 3:86) 3:15 4.07° 3:49 3:85 .72 3(68eegeseueaceum 
1896. .75 1.58 1.73 3.64° 3:42 3.09 7:50 1.07 9.58  .74 2° 4000sseeQmeooee 
1897 4.11 1.55 3.86 4.49° 1:57 5.38 1.96 ..... 1.14 .79 1(54= 00; 
1898 2.48 2.26 2.96 2.24 2.41 8.37 2:66 .... 2.12 2.94 “(928 2 4Gpeee 
1899 0.28 1.13 1.65 0.62 5.54 1:61 2:99 1.93 2.10 1.16 3.64:00edseegtege 
1900 1.61 2.42 1:48 2:94 1.84) 1584° 5:6P 20.07 us... 2, > 25 





EXHIBIT 101. 


Year 


1881 
1882 
1883 
1884 
1885 
1886 
1887 
1888 
1889 
1890 
1891 
1892 
1893 
1894 
1895 
1896 
1897 
1898 
1899 
1900 
1901 
1902 
1903 
1904 
1905 
1906 
1907 
1908 
1909 
1910 


Jan. 


1.31 
2.15 
0.71 
2.66 
4.10 
3.93 
O1 
.13 
64 
91 
13 
83 
50 
39 
50 
64 
28 
37 
.63 
27 
70 


HOW NORP HOFF OW ROR NRHP RP Hee 


1.25 


Feb. 


WNP OrORrWNFrNHY KH RENOWN OR RWO- 
fe ° ° . 
co 


nor 
> 00 
lores) 


4.60 
10.09 
3.78 


767 


SYCAMORE, ILL. 


May June July 


3.50 
3.80 
8.55 
3.18 
1.65 
4.24 
0.95 
5.50 
5.17 
87 
79 
wit 
25 
90 
52 
.80 
.10 
20 
2 
.83 
63 
-97 
.16 
3.51 
6.59 
4.40 
4.59 
7.01 
2.97 
4.81 


“Tr bo OR WDD WD De Ob ee 


w 


11.40 
7.90 
5.85 
4.53 
7.04 
2.27 
1.12 
1.27 
1.50 
7.98 
3.55 

11.23 
5.04 
1.79 
2.20 
1.59 
6.04 
3.47 
1.19 
2.22 
1.88 
9.00 
2.70 
2.57 
4.30 
3.17 
4.57 
4.12 
3.27 
0.78 


7.05 
4.35 
5.50 
8.84 
4.98 
0.67 
3.12 
3.10 
4.48 
0.42 
2.00 
2.56 
3.65 
0.78 
3.10 
3.60 
3.03 
1.22 
4.04 
5.60 
4.51 
7.83 
7.14 
4.04 
3.20 
1.36 
4.99 
3.06 
0.62 
1.50 


DEKALB Co. 
Aug. Sept. Oct. 
0.80 5.10 8.20 
2.34 1.94 4.55 
1.95, 2.93, 6.48 
3.43. 3.46, 5.76 
9.90 6.10 4.65 
Bee ae Boe dp 20 
9 os ey pe A 
4°03, 1.097 2.37 
0.86 1.93 0.85 
Bit le cee Oso 
ze, 0.01, 0.89 
3.56 1.62 0.95 
Oran ano, ioie 
GO. oor eld t. 
3.06, 0:75. 0.55 
0.58 8.39 0.26 
1.06 0.44 0.38 
6.47, dull) 4.51 
1.39. 1.738. 2.44 

18 ee Gris ei 
WOGe2 13 0e1 
Dat A220 eaal0 
54 685s od 
6.49 5.24 0.84 
6.52 1.06 4.61 
3,04 620954202 
iy tod er hoe 9 Wea 6 
3.46 1.00 0.86 
7.08 3.95 1.19 
4,22 1.80 2.04 


Nov. Dee. 


3.60 3.75 
2.25 2.25 
6.63 1.86 
2.48 4.14 
2.06 3.05 
0.96 1254 
130% 0.02 
1.80 
1.80 
ay) 
4.21 
y Ae} 
2.74 
1.96 
3.71 
1.88 
3.38 
1.76 
1.33 
2.23 
1.32 
2.95 
0.97 
0.03 
2.20 
3.40 
1.42 
2.05 
5.42 5.27 
1.10 0.63 


Bee ee NNN HOF OO OC WO bo bo Dore bo 
. . . . . . . . . . . . 7 . . . . . . . . 
co 
— 


EXHIBIT 102. 


Year Jan. Feb. Mar. 
LOO ees. or chee aes 
T8027) 2000 led5ull a7 
INOS 5 “1542 e leolaeceon 
1894 1.34 0.81 2.49 
1895. 1.55. 0.42 0.53 
1896 0.43 0.89 1.82 
1897.4. 2:73» -1.03> 3.28 
1898: = 2.345 1.50. 3.24 
1899 0.64 0.77 1.47 
T9005 41543) te Sir Oce4 
190th. 1e02) 1232 2.05 
19025 .0;29-) 12392-1433 
1903 0.48 0.72 2.86 
1904 0.81 0.86 3.54 
1905 0.86 1.21 2.50 
1906... 3354) 1223-2125) 
190 221 be 0e lie 2 
1908 0g ariacoy esol 
1909 2.44 0.93 0.75 
1910] 2.375 0,755 0214 


EXHIBIT 102. 
Years Jan: 
190 Tes 3. Sees 
1908 0.89 
1909 1.40 


EXHIBIT 103. 


Year Jan. 


1887 3.71 eid 1.01 72,11 


1888 1.32 
1889 2.25 
1890 3.07 


Feb. Mar. 


1.77 3.16 


Feb. Mar. 


2.65 3.23 


> 
1S, 
Be 


Oot wwe Orr A100 ObD- 
NR Or OOOCr CORR WwW. 


mS 
Oo co 


WOoORNDHEHEHENDHONHE NAKHON OID. 
CO bD Ht : 
i 


ive) 
— 


Apr. 


768 


WAUKESHA, WIS. 


= 
& 


June July 


8.53 
4.32 
22 
29 
59 
14 
54 
99 
21 


DWNWONONNUMSCMONDDOHOOHR. 
NOBNOHONGMOENNHEDH OMS. 
Re bo tO O1 WD Ob WW BRR Oe CO DD DD bOD 

yt 
HOR ORNWOONNTNNWNHHWeH. 
PROWNNTHOWDOOHONMAMIHOS. 
ih > ONO AIO ORM OOOSRe. 


DPRHORROWNW 


WNPWNOWHROR Rr WHERE POW D AT. 
COW rR WwATONTOWO 


WAUKESHA, WIS. 


May June July 


(No. 1) WAUKESHA Co. 


Aug. 


3.07 
2.61 
2.67 
4.08 
2.50 
5.67 


0.64 


4.33 
4.07 


3.73 
2.80 


Sept. 


0.58 
2.45 
2.87 
4.55 
1.56 
5.71 
1.35 
1.55 
3.18 
2.02 
2.67 
3.95 
5.04 
4.33 
1.44 
2.84 
5.21 
0.81 
3.32 
2.29 


Oct. 


1.46 
0.78 
2.41 
2.37 
0.67 
0.68 
eye 
4.10 
1.21 
2.34 
1.00 
1.73 
2.50 
3.28 
3.19 
2.36 
1.25 
0.82 
0.48 
1.13 


Nov. 


3.21 
1.49 
1.47 
2.08 
2.11 
2.05 
1.25 
0.98 
2.20 
1.86 
0.58 
2.39 
1.01 

22 
2.19 
2.54 
1.26 
2.03 
ase 
2.87 


(No. 2) WAUKESHA Co. 


Aug. Sept. Oct. 


Lilie. 


Nov. 
1.48 


1.64. 0.68 1313 1.12 
3.43 3.14 0.62 3.01 3.95 


WoopstTock, ILL. McHenry Co. 


May June July Aug. Sept. 


4.40 


1.48 2.09 3.34 


4.31 
0.82 


Oct. 


Dec. 


2.08 
1.95 


eeeee 


- 


Nov. Dec. Yearly 


2.88 


2.55 
2.20 


ee nee 


ereee 


Sees 





EXHIBIT 104. 


Year 


1900 
1901 
1902 
1903 
1904 
1905 
1906 
1907 
1908 
1909 
1910 


Remarks: 


EXHIBIT 105. 


Year 


1897 


Jan. 


Hee OW ON OCOOF: 
m= OATS OS © OCF: 
OOwWoWaorLwWwoocogmn: 


Jan. 


Feb. Mar. 


LiferelsG 
1.26 
2.05 
1.78 
1.74 
2.12 
0.83 
0.17 
2.10 
1.70 
0.46 


4.05 
2.70 
3.23 
4.96 
2.38 
1.31 
2.58 
2.20 
0.85 
0.07 


Apr. 


0.79 
0.31 
1.15 
3.14 
5.23 
4.04 
1.97 
1.55 
8.41 
4.16 


* 11 days only. 


Feb. 


Mar. 


Apr. 


769 


YORKVILLE, ILL. KENDALL Co. 


May June 


4 ATs 2.14 
UBT TY eat Tea a 
7.06 14.44 
3.01 4.72 
y Ma He Pa Ht 
5.96 4.62 
5.09 2.20 
4.60 5.22 
6.18 1.65 
2.21 5.21 
4.49 1.02 


July 


3.84 
3.34 
(ee!) 
5.07 
3.88 
3.90 
1.61 
6.23 
3.96 
2.24 
Looe 


FORREST, ILL. 


Aug. Sept. Oct. 


4.23 2.53 2.83 
0.80 3.36 1.08 
2.96 8.23 1.80 
5.15 6.76 2.40 
4.21 3.82 1.44 
ue oheeiy 1.08 
3.90 10.25 2 
iad (ae aden keh 
o.90e- 0.95 (. 
2.09 3.32 1 
3.90 5.58 1 


LIVINGSTON Co. 





May June 


July 


Aug. Sept. Oct. 


Nov. 
4.56 


o 
& 


SCrFPOCHHENHRRFrO 
COP “IC COR HE MONrH 
SOaAnNwnrewaownoww 


re oo ee ee es 6 Shae res See Shete. | aha Se ae oun ear” SC eORINE © sp CB «8 6 © 


EXHIBIT 106. 


Year 


1895 
1896 
1897 
1898 
1899 


Remarks: 


Jan. 


1.23 


Feb. 


2 


1 


00) 1.87 
5.67 2.51 
4.62 2.11 
op AAC, coca 


* 92 


Mar. 


1.06 

93 
4.01 
5.17 


Apr. 


3.42 
3.62 
2.70 
2.13 


occurred in 


LEXINGTON, ILL. McLEAN Co. 


May June 


1.23 2.29 
6.22 4.58 
1.68 1.59 
6.09 2.21 


July 


9.16 
7.18 
6.38 


1.32 


Aug. Sept. Oct. 


4.89. 5.87 2216 
Oe, (alee a 2 

Geers 
2.44 5.23 4.06 





Nov. 
2.80 
4.19 
2.09 


Dec. 


6.83 
0.15 
1.47 
1.18 


23 days. Total fall for month estimated 1.00. 


EXHIBIT 107. 


Year 


Jan 


hey 
@O 
= 


5 


Apr 


WoopForD Co. 








Nov 


: . Mar. : Aug. Sept. Oct. : : ; 


1895 - 


1896 
1897 
1898 
1899 
1900 
1901 
1902 
1903 
1904 
1905 
1906 
1907 
1908 
1909 
1910 





1.26 
5.14 
4.21 

50 
1.30 
1.49 

48 
0.71 
2.51 
1.16 
1.89 
3.99 

.80 
1.62 
1.45 


Sethe he ee 
CMM OROR HE PW PIAA: 


Re OO OO 


WOWAWAWOMDRROOO OP: 


OK NOR RRP WNWMNWWWNHOLWF- .- 
SCmPRUIDODODWBDRONSOHS. 
WCONWMNWONTOHNOOON KH OOO: 


3.64 
2.93 
2.87 
1.58 
1.16 


2.23 
4.65 
2.75 
3.88 

92 
2.59 
4.06 
5.62 
3.63 


MINONEK, ILL. 
May June July 
iti Weis Neey Bae Das! 
$205 22257,53-93 
6.84 2.92 .58 
BeOS. bathe 
3.09 1.40 2.21 
2.41 2.50 2.40 
2:43 9.Al 7.76 
3.23 4.12 6.24 
gel) 1eH 623 
4.54 3.35 2.07 
1.62 2.46 1.66 
4.14 4.19 5.72 
Si ieal. 2h 1.88 
DU OTOL A UO 
452° 4507) 1.31 


Le & Soe Se 
2.67 4.53 0.20 

1029 0 ae LS 
4.76 5.47 3.86 
1.74 4.20 3.47 
6.43 2.54 2.24 

BY fi et OS rey ti 
8.56 4.59 1.59 
4.49 7.14 2.23 
2.69 4.14 0.17 
2.59 2.64 2.10 
2.51 4.37 1.50 
3:91 3.82 .44 
1.62, .0.99,.0.69 
3.32 1.98 2.43 
2.46 3.91 0.93 


4.03 
2.32 
0.92 
2.13 

95 
2.66 

78 
3.15 
0.92 


1.68 
2.04 
1.89 
1.60 
3.83 
0.33 


(70 
EXHIBIT 108. PontTaic, ILL. LivINGsTon Co. 


Year Jan. Feb. Mar. May June July Aug. Sept. Oct. Nov. Dec. Yearly 
ia regan Rp yon’ wees mina, ven,» 4090s O00 pe og toe 


> 
Ss 
oe 


1886 0.75 .... 2.50 1.90 2.99 1.28-0.82 0.80 4.28 0.382 U;63 00 5ae 
1887 0.92 3.85 1.11 1.20 1.15 0.28 0.13 1.600 1.01~ 0.93) Ul a7 eo, cee 
1888 1.40 1.48 2.38 0.90 5.70 3.85 4.32 0.65 0.47 2.35 1.37 Li20e2oue 
1889 1.39 0.97 1.58 1.35 5.50 2.42 4.65 0.11 3.80) 162° Sou0 eee 
1890 4.18 1.20 $8.58 4.157 3.65. 5.10 0.75 1.95 0135" 2.61 ape ee 
1891 0.95 2.45 2.88 3.45 0.47 6.07 2.65 3.95 0.20 1.40 4.70 2.40 31.57 
1903 0.80 3.23 2.54 4.94 4.36 1.39 6.35 2.60 3.62 2.76 1O0G@))1 OR ao 
1904 3.92 1.84 5.73. 3.63 2.67 1.95 5.37 2.45 5.79 O17 0.00) Zola 
1905. 1.80. 1:89 2.17 3.45: 6.33° 1.70 1:78. 1.82 2.26 2.55 9222000 tag cee 
1906 3.07 1.78 3.28 2.18 1.77 2.35 2.39 0.80 3:56 1.6] 2,550 oq eee 
1907 5.62 0.15 2.74 3.09 3.28 3.00 5.66 4.47 4.59 0.61 2.04 3.05 38.30 
1908 1.01 4.52 °2.90 4.83 8.72 1.65 2.35 1.251.530.9220) eee 
1909 2.58 4.30 1.81 5.96 3.05 2.90 2.29 3.75 2.15 2.33 4.00 S3coeueeee 
1910 1.78 0.97 0.20 4.07 5.04 2.14 -1.25° 4.39 4.10 1.69 0.82 S0e/aieeie 
EXHIBIT 109. STRAWN, IuL. LIVINGSTON Co. 





Year Jan. Feb. Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Yearly 


1899 .... (.... .s.0 1.04 6841 4.07 1.80 74 3.79 2.60 1.78 Bae 
1900 0.95 3.76 2.11 1.12, 3.76 .... 2.65 5.94 1.50) 1.645 )4)52 ee 
1901 1.46 1.18 3.59 1.07 2.77 4.22 2.37 3:00 2.52 3.22 1.00 2:64 929704 
1902: .97 1:70 3755 2039 3259.14.00 .... [205 5167 2a ee 
EXHIBIT 110. STREATOR, ILL. LA SALLE Co. 
Year Jan. Feb. Mar. Apr. May June July Aug. Sept. Oct. Nov. Dec. Yearly 
1893. .... sees «se 6.17 9.21 0.96 2.4. 122. 3.00) 22 er 
1894 1.90 0.44 2.95 1.038 3.62 2.53 °.... S..2) (20. gape ecu 
1895 1.55 0.30 1.40 0.41 0.80 -.... 6.00, 2.60 1.90 1.00 4.54 OS (80se 
1896 1.30 1.15 0.65 2.63 5.98 3.27 5.75 1.52 3:44 0.05 2 O07 SQ sO 
1897 5.65 1.55 4.08 1.88: 21:18" 6.70-2.71 1.077 1.10 0.23 “4,270 espa 
1898 3.43 1.62 6.93 3.00 6.00 3.24 0.62 2.96 4.20 2.99 2.47 0.77 38.23 
1899. 1.28°-1.82° 2... 0.45°°2750° 1,825.22 1569°°2273" 2:47 1.23) 
1900 1.49 3.54 2.85 1.24 2.44 1.63 3.13 7.13 2.56 2.18 2.57 Oioaeegeeee 
1901 1.42 1.40.3.49 0.75 1.24 2.85 3.02 2.56 2.20 0.63 1.38 245 23709 
1902 0.79 1.32 4.66 2.17 4.37 10.64 8.59 7.11 5.26 3.24 3:48 IO74 oacay 
1903. 0.90 2.52 3.79. 4.81 2.48 2.07 2:43 4.04 7.60 1:02 0.78 Deyeeesaeee 
1904 2.23 1.55 5.76 3.91 4.46 2.11 4.60 2:39 4.15 0.20 TO Seb7ueagees 
1905 1.07 1.88 2:20 4:22 4.77 3.01. 4:10 2:15 2.39 2.64 InfS Sean 
1906 2.26 1.99 2.77 1.40 1.79 9:10 1:39 2:25 4:25 1.64 2575 Soe0Geeceeen 
1907 5.64 0.10 3.02 2.92 3.70 3.95 7.61 5.08- 5.58. 0.51 2:06 [yaleeaiees 
1908 0.59 3.73 2.53 4.15 7.16 1.69 3.62 0.41 0.39 0.68 2.36 O.;022eeee 
1909 1.37 3.45 1.81 6.61 2.76 4.79 2.60 3.31 2.74 2:21 S327 2eppeeeeee 
1910 2.25 1.03 0.41 4.20 5.13 2.98 0.81 5.38 .4.59 1.43 0.43 1-81 30745 





3480 Order adjourning court until Monday, December 2, 
1912, at’ 11 o’clock. 


771 


3481 December 2, 1912, 11 a. m. 


Court met pursuant to adjournment. 


F. EK. Caupwett, a witness for defendant, being sworn, 
testifies as follows: 


Direct Examination by Mr. Chiperfield. 


My name is F. EK. Caldwell. I reside at Havanna, Ih- 
nois. I am fish commissioner of the State of [llinois. 
I have resided at Havanna 50 years. Am acquainted 
with the Illinois River, particularly from La Salle to 
Grafton. 

3482 The State of Illinois has a steamer which is used in 
the prosecution of its fish preservation work, the name 
of which is ‘‘The Illinois.’’ It is 139 feet long, 28 feet 
wide. It is a hght draft boat, about 30 inches, but it 
takes more water of course to run it. 

I have been chief warden of the state for seven years, 
but I have been connected with the service for twelve 
years. 

I have been acquainted with the Illinois practically 
all my life. I was raised on it. I have known the river 

3483 probably intimately for 16 years. Since 1900, when the 
Sanitary District channel was opened I have noticed 
some little difference in the Illinois River. In my judg- 
ment and opinion the difference, comparing the low water 
period with low water period the height of the water 
is from 10 to 14 inches. It would vary a great deal ac- 
cording to the rainfall, but in a general way I would say 
about 12 inches. 

I have noticed the tributary streams of the Illinois 
River. The tributary streams of the Illinois River carry 

3484 considerably more water now on account of the drain- 
age than they did ten or twelve years ago. 


172 


I am familiar with the levee conditions in the vicinity 
of Havanna. I constructed the largest one down there, 
the Lacey levee. There are three levee districts imme- 
diately adjacent to Havanna, the Lacey, the Langilier 
and the Otter Creek Districts. The Lacey and Langilier 
districts extend about three and four-fifths miles along 
the river. The Otter Creek District does not touch the 
river. It lies right back of the Langilier District. Before 


3485 the Langilier and Lacey Districts were put in near Ha- 


vanna the width of the river was about seven and one- 
half miles straight across from bluff to bluff. In high 
water the river is 5,600 feet wide. 

I know the high water of 1892. I have not seen any 
high water in the river as high as the July water of 
1892. 


3486 I have been over the Illinois River many times between 


La Salle and Grafton. The Illinois River as it was in 
times of high water before the drainage systems were 
put in, was more of a sluggish nature, did not rise as 
quick nor it did not fall as rapidly. Now it seems that 
the river will commence rising and it will rise very rap- 
idly and unless the Mississippi is very high it will fall 
about as rapidly as it rises. 


3487 I have known of back water in the Illinois River on 


account of the Mississippi River to come up to the Camps- 
ville Dam. That would be about 41 miles. 

I know about the drainage districts in my vicinity 
and up and down the river. They all have pumping sta- 
tions in connection with them that I know of. I do not 


3488 know what quantities of water the districts will dis- 


charge into the river but it is an enormous amount. The 
drainage districts in the Illinois River have been con- 
structed within the last 15 years, most of them within 
the last six years. 


T am acquainted with the stretch of river above the 


173 


Henry Dam. The steamer Illinois is in commission from 
3489 April 1st to November 15th as a rule. During the four 
years I was with it practically all the time; the last 
three years I have only been with it occasionally. Now, 
probably once or possibly twice a week for the last three 
years. Captain Spear had charge of the steamer at such 
times as I was with him. He was master and the en- 
gineer was William McKinly. They have been with the 
steamer all the time I have been connected with it. 


3490 Cross-Examination by Mr. O’Conor. 


I have never had any connection with the Sanitary Dis- 
trict of Chicago. I have not been in La Salle during low 
water since last June, July and August, I mean this year. 
When I speak of La Salle I mean Peru. 

3491 I shonld judge the river at Peru is about 650 feet wide. 
I would imagine the depth of the water is 11 or 12 
3492 feet. I made no soundings to ascertain its depth. I 
don’t think I know any day in the last summer, in the 
year 1912, when I can tell how deep the water was, how 
much water there was at the Peru bridge either in the 
month of July or the month of August. I cannot tell 
you any specific day in any vear. I have formed my 
idea from the observation of the nets that are fishing 
3493 illegally in the river. For instance you take a net this 
year that is fishing at a certain time, in certain water, 
and it is a five-foot net with the hoops half way out. 
The next year you will find the same place, the same 
sized net is entirely submerged. Those are the things 
I formed my opinion on. I recall years when IT saw 
them out of water and years when in the summer time 
I would see them completely submerged in substantially 
3494 the same place. It was along the east shore or the 
opposite shore along Peru there, commencing just at the 
bend and going south half a mile down the river, just 


(74 


around the bend probably 500 feet I would imagine. 
I saw it submerged between the 15th day of April and 
the first day of May five years ago, and three years 
ago if I remember distinctly. 

At Peru I have noticed the water is more of a bluish 

3495 color than it was before the Sanitary District water 
was turned in. Prior to that time the water was some- 
what sluggish and dirty. Very little current along the 
side, the current was out in the center if it was any 
place. 

3496 We had no trouble bringing our boat up there prior 
to the year 1900. We go up the channel on the north 
side where the bank is steep. We dock there by keeping 
close to the north bank where the old dredge used to 
come in. 

I don’t know how much blue water it would take to 
give a stream a blue appearance. I think it would de- 

3497 pend a whole lot on the condition of the water before 
it was mixed. Where a clear fresh stream comes into 
a mucky river, you will notice there is a difference in 
the clearness of the water for a certain distance around 
the point where the two streams come together. I did 

3498 not have in mind a clear stream running into a larger 
stream of dirty water. I had in mind a stream coming 
down off the bluff and that muddy water you will see 

3499 for miles. down the river, that is at the side that it 
comes in. You will see a perfect stream all the way 
down for miles on that side. 

3500 The Sanitary District water I think it carried about 
38 miles befere it reaches Peru. I have not noticed 
the same bluish condition at a point farther down stream 
unless it is in the summer time when there is no rain. 
I don’t know that I ever noticed it at Henry. I am fa- 
miliar with the character of water that comes from the 
Kankakee at Kankakee and at Wilmington. 


775 


3501 I don’t recollect having made any observations as to 
whether the combined waters of the Sanitary District 
and the Desplaines River are greater or less in quantity 
than the Kankakee River at the point where these two 
streams come together. It has been 90 days since [ last 
saw the rivers at said point. I did not see them with any 
purpose in view except in the line of by business. 

3002 The highest water was in 1892. It was a flood year. 
Prior to that in 1883, another flood year. It was higher 
than the water of 1892. 

Our boat draws 30 inches of water when it is stand- 

3502 ing still. Running 18 miles an hour you ought to have 
15 feet of water for good navigation. Need lots of 
water. Have always had high water on the Mississippi 
River. The level of the Mississippi water got higher 
than the level of the Illinois water, it backs the Illinois 
up. I have noticed a change in the Spoon River; the 

3504 others I have not noticed. I have noticed that the Mack- 
inaw below Pekin, comes out with greater force and more 
rapidly and comes in a volume. 

The Illinois River is the largest stream and its tribu- 
taries for the most part are small creeks. 
This diking I spoke of was done to reclaim bottom 

8005 lands. These lands were always submerged. The work 
has been going on for 15 years. 


Re-direct Examination by Mr. Chiperfield. 


The nets I spoke of I saw three years ago when they 

were about half in the water. And five years ago when 

3006 they were entirely submerged. I would imagine the 

current in the Illinois River is between three and four 
miles an hour. 


776 


Re-Cross Examination by Mr. O’Conor. 


Right now at this time. I would take it from the point 
Tam most familiar with at Havanna or Peoria. It would 
not be quite as much at Peoria, I don’t think, as it would 
where the river is narrower. It was five years ago when 
3907 I saw the net in a certain place submerged and about 
three years ago in the same place the net was half sub- 
merged. The general inference I drew was that there 
had been a rise in the river of about one foot. Five 
3508 years ago there was a difference of two and one-half 
feet of water, compared with where the nets were three 
years ago and that was the only incident I had in mind 
on which I based my conclusion that the river has in- 
creased from 10 to 14 inches. I said half way. It might 
3509 have been. It might have been less and and it might 
have been more. It was simply an illustration. That 
3010 would just be one of the instances that would show a 
person that there was a difference in the water. 


CuHarLEs Sprar, a witness for defendant, being sworn, 
testifies as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Charlie Spear, I reside at Havanna. I 
am 46 years of age. I am a captain, pilot and general 
river man. JT am captain and pilot of the Illinois. I 

3511 have been following the river since 1881. I have been 
on all the boats that Captain Sibley ever owned and 
on the steamer Eleanora, for seven years, and been on 
the Illinois for four vears. The Sibley line has head- 
aquarters at Peoria and Havanna. They had six or seven 
boats. JT have been a licensed.master and pilot every 
since IT was 21 years old. I have been over the entire 
Illinois River but T could not say how many times. I 


177 


3512 know the whole stream. I have acted as pilot over the 
entire stream. I knew the Illinois River before 1900 
and since. 

I think there is a difference since the Sanitary Dis- 
trict of Chicago was opened January 17, 1900, in the 
low water of the Illinois River as compared with the 
low water before that time. My best judgment is it 
would be 10 or 12 inches. 

3513 I have noticed the tributary streams as they come 
into the Illinois River as compared with eight or ten 
years ago. They used to go dry. [J haven’t noticed any 
of the creeks dry lately. 

I know the location of the Henry Dam and about the 
river filling up above the dam. It has been. about five 
years ago we boated the timber off on a point of land 
just above the dam there about Beardstown, and we 
loaded our barges there drawing four feet. I had a dou- 
ble trip to get into the lock and shove the barges through 
the mud to get back into the lock just above the Henry 
Dam. That has been five or six years ago. 

I don’t know the width exactly at the Henry Dam. I 
think it is about six or seven hundred feet. 

3014 Before 1900, in low water there was hardly any cur- 
rent; now there is about three miles of current most 
every place. 

I am familiar with the levee and drainage districts 
along the Illinois River. Before the construction of 
these levee and drainage districts, along the Illinois River, 
from Pekin down, in times of extreme high water it ex- 
tended from bluff to bluff. I think the greatest width 
is about three miles at Havanna. I think it was 1902 it 
took out all the roads across from Havanna and shut off 
navigation there on the bridge. I took a flat boat and 
boated some fellows across the river, ferried them across 
the river and I landed here against the bluff at Sepo. I 


178 


think the bluff from the Mason County side over there 
was three miles. With these drainage districts, in times 
of high water, the river is a whole lot narrower. 

3515 I have observed the high water on the Illinois River. 
The highest water I ever personally observed I believe 
was in 1892 andit might have been six or eight feet higher 
than any other high waters we have had since. 

The steamer Illinois is the steamer with which Mr. 
Caldwell and Mr. McKinley are connected. My territory 
as master and pilot covers the Illinois River and tribu- 
taries from St. Louis to Keokuk on the Mississippl. 


3516 Cross-Examination by Mr. O’Conor. 


I think the high water was in 1892. Nothing has been 
said to my mind that recalls the year. That has not been 

3517 talked over between me and anybody else. 

The river is from 10 to 12 inches higher; that is getting 
down pretty close. I did not measure it. I have not 
talked the proposition over within the last week. Steam- 
boat men are always talking over the river, whether it 
is rising or falling. 

3518 I first knew I was going to be a witness when I was 
called a day or two ago, when I was asked about the rise 
in the river, I was asked about the difference and I put 
it from 10 to 12 inches. I never made any measurements 
with a rule. I have put lots of barges over the dam 
and we watch that very close, you know in putting barges 
over the Henry Dam. I have measured the water lots 
of times with a rule when the water would rise. We are 
interested in that and I put out a mark and I kept it 
from time to time, whether it raised a foot or two feet. 
But when this water was turned in I wasn’t watching 
that very close. : 

3019 I remember when it was turned in. It was turned in 
in January, I don’t know exactly what year. I don’t 


119 


know how long afterward I first noticed any change in the 
river. I was fishing in the vicinity of Havanna. A part 
of the time it was frozen over at Havanna. 


The first time we noticed any rise in the river we 
3520 did not notice over a foot of rise. 


Recess taken to 1:15 p. m. same day. 


3521 December 2, 1912, 1:15 P. m. 


Court met pursuant to adjournment. 


CHarLin Spear, a witness for the defendant, being re- 
called for further cross-examination by Mr. O’Conor, 
testifies as follows: 


In the month of January when I say there was a rise 
in the river after the opening of the Sanitary District 
channel, it was just the ordinary stage of water. I 
could not state the stage. My best recollection is it was 
1900. It was not a very low stage. I have seen the 

3022 water very low in winter. Ordinarily there 1s a pretty 
good flow of water in the river during the month of Jan- 
uary. I next noticed an effect when it would rain; the 
river would rise. That water did not come from the 
district channel. That water has always showed its 

3523 effect on the Illinois River. Then I noticed the water 
in the summer time did not get as low as it usually 
did. When it would rain the water would become muddy. 
Before 1900 the river always cleared up during the win- 
ter and was dirty during the rainy season. When the 
water was low it was sluggish during the summer months. 
I was acquainted with the river at Peru. I never floated 
any rafts or anything around Peru, but I know that 

3024 the current was very slow before 1900. There is more 
current since the water was turned in there. The ap- 


780 


pearance of the water is a little clearer, always clearer 
when it is high. 


I never sounded the water at the Peru bridge before 
1900. It was always deep there. I had no occasion to 
sound the water. I have no marks or anything of that 

3525 kind in my mind that enable me to determine the rise in 
the level of the river since the year 1900, has been from 
10 to 12 inches, only the river is always a little higher, 
always more water in the river. The dams for one thing 
at Copperas Creek and at Henry. I noticed we could go 
over the dam at Copperas Creek longer than we used to 
with a steamboat drawing from 24 feet to 32 inches. We 
would go over Copperas Creek sometimes when we were 

3026 dragging a little drawing 30 inches. By dragging I 
mean scraping the bottom. The difference I have no- 
ticed 1s we used to get down until there would be possibly 
a foot or a foot and a half of water going over the dam, 
and now it is three feet or more at a longer time during 
the year. Of course it would be just enough to make the 
difference. I could not say just exactly what the differ- 
ence in the rise of the river would be. Probably a foot 
or a little more. 

3027 I should judge the river where it crosses over Copperas : 
Creek Dam is about the same width as at Henry, six or 
seven hundred feet. And before it comes to the dam 
there is a considerable flow along in a straight direction. 
I think the increase would be approximately the same as 
it would be at a point further up the river, although 
where it is narrower it ought to raise the water a little 
more. 

3028 The Henry Dam is upstream from the Copperas Creek 
Dam a little over 50 miles. I have not run over the Hen- 
ry Dam very much or through the locks. I boated timber 
through there about five years ago. We ran over the 
Henry Dam some this year. Almost every month during 


781 


the summer of this year with the Illinois, which draws 30 
inches. When the boat is coaled down it draws 30 inches. 
We always slow down very slow in going over either dam, 
less than four miles an hour. We dragged once crossing 
the dam this summer. I could not mention the month ex- 
3529 actly, I could tell by looking at my log what month. 


I don’t know about the flash boards being used at 
Henry. The increase in the rise of the river is simply 
given from general observation. The flow of the river is 
now I think three miles an hour at all times. Of course 
when the water is high in the spring it is more than that. 
It is less than three miles an hour in some of the deep 

3530 water. When the river is higher the speed is faster. I 
have no notion as to the speed of the river prior to 1900. 
I have tried to float a pan of fish from Liverpool down. 
I know it would take a whole day, eight miles, practically 
no current, and I think now it is three miles an hour. 


They have been constructing levees down there for some 
time. 
3031 JI remember all the high water ever since I came on 


the river but I don’t remember the year. J remember 
there was high water in 1883 and 1892 and 1902. 


Re-direct Examination by Mr. Chiperfield. 


The first levee I remember being constructed was con- 
structed about fifteen years ago. The District was start- 
ed, the Lowe and McGinnis levee across from Beards- 

3532 town, or the Christian Lowe. There was no levee con- 
structed at the high water of 1892. Mr. Traut was engi- 
neer of the district. 


I have seen more than three feet of water on the dam 
since 1900, and have seen less. 


782 


3533 GLEN W. TRAER, a witness for defendant, being sworn, 
testifies as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Glen W. Traer. I reside in Chicago. I 
am a coal operator. At the present time I am interested 
only in the operation of mines at Danville, [llinois. I 
have been interested in several of the districts in the 
state in the past. In times past I have been interested in 
the La Salle District. 

I am acquainted with the coal proposition throughout 
the La Salle District, something more than twenty years. 

3534 I am acquainted in a general way with the region in 
which are situated the lands claimed by the La Salle 
County Carbon Coal Company which lie across the river 
from Peru and La Salle. I don’t know their property 
individually. I observed the property which was pointed 
out on the map this noon. | 

Q. Now, I will ask you to state in a general way if 
you have an opinion as to the fair cash market value of 
that property after January, 1900? A. As a coal prop- 
erty, yes. | 

(). You may state what in your judgment and opinion 
was the fair cash market value of that property? 

Mr. O’Conor: We object, your Honor, unless the whole 
property is included. 

Mr. CuiperFieLD: Well, we are including the property. 

The Court: I think I will let him answer. 

Mr. CHIPERFIELD: You may state, Mr. Traer. 

Mr. O’Conor: Pardon me. Is the time fixed? 

Mr. CHIPERFIELD: Yes, sir. 

Mr. O’Conor: I thought you said simply after 1900. 

The Court: Well, the question is perhaps objection- 
able, that feature of it. 


783 


Mr. CurperFietpD: Well, the theory on which I am pro- 
ceeding is this, if your Honor please. I want to show the 
3535 value of that property after that date up to and includ- 
ing this, and if your Honor please, unless the court is fa- 
miliar with a couple of decisions, | want to call your Hon- 
or’s attention that we have the right to show up to that 
time as bearing on the question of its value. I have the 
opinions here. I laid them out, thinking perhaps the court 
might wish me to produce them, and I have them there 

if there be any question about it. 


The Court: If I understand your question to include 
asking for an opinion of the witness as to the value of 
that property, the market value of the property at the 
present time—— 

Mr. CHIPERFIELD: No, it is not that. 

The Courr: If you do, I will sustain the objection. 

Mr. CureerFIELD: No, it is not that. It is the value 
of the property shortly after 1900. 

The Court: Well 

Mr. O’Conor: We object, unless it is confined to the 
proper period of time, your Honor, to the same limits we 
were confined to. 

Mr. Cuiperrisetp: May I produce an authority, your 
Honor? 

The Court: Yes. 


Mr. CurPerFIELD: Now, in the case of Springer against 
the City of Chicago, 135 IIl., page 552, the court uses this 
language: 





3036 ‘‘Kividence of the value of the property at the time of 
the trial is competent, as having a bearing on the value 
of the property. Evidence of the value before and after 
the time when the damages are alleged to have been sus- 
taind is admissible.’’ 


3037 @. You may state, Mr. Traer, what in your judgment 


784. 


and opinion was the value of this property shortly after 
1900? 

The Court: There is no objection to that. 

Mr. O’Conor: I don’t know what the questioner’s 
idea of shortly is, your Honor. 

The Court: You know’as much as I do. 

Mr. Curperrirtp: They may find out on cross-exami- 
nation what that is. 

The Court: You know as much about it as I do. 

Mr. O’Conor: We object unless he states some definite 
time. 

The Court: I think I will sustain the objection to it. 

3038 To which ruling of the court, the defendant by its 
counsel, then and there duly excepted. 

Mr. CuiperFieLD: Very good. Now, I can make things 
pretty short. I want to offer to prove by this witness that 
the value of the coal rights, shortly after January, 1900, 
in and to all the property described in plaintiff’s declara- 
tion was $50 an acre, for coal purposes. 

The Court: I think this. I think you are entitled to 

3039 prove the general condition of the property at the pres- 
ent time, the physical condition, the circumstances and 
situation and all those things, but I doubt whether you 
are entitled to prove the market value at the present time. 

3040 I think if it is restricted to the time of the alleged injury 
or alleged damage, I will allow you to do it. I feel as if 

3041 I ought not to allow you to take an opinion of the wit- 
ness as to the present fair cash market value of the land 
if they object to it. If they don’t object to it I will allow 
you to do it. 

Mr. O’Conor: The Sica so far was to the form of 
the question that he put. I don’t know what he means by 
shortly. 

Mr. Curprrrietp: That is for the witness to say and 
for you to find out, and I don’t mean that as a short 


785 


answer. It is for you to find out on cross-examination 
what the witness means. 

Mr. O’Conor: That is not the policy we were forced to 
pursue, your Honor. 

The Courr: Well, that is the question here now. 

Mr. O’Conor: I want the record clear as to what our 
objection is made to, not as to the proof but as to the form 

3542 in which it is sought to be produced. 

The Court: You have objected and I have sustained 
the objection. 

Mr. CuipgerFieLtp: All right. I will ask you to state, 
Mr. Traer, what in your opinion was the fair cash market 
value of this property in 1900? 

A. In my opinion the property in 1900, was worth 
about $35 or $40, its cash market value as a coal property, 
plus whatever value the surface of the land may have 
added and that I do not know. I do not know what the 
value was or Is. 

Q. Iwill ask you to state in your judgment and opinion 
what was and is the fair cash market value during the 
year 1912 prior to the date of giving your testimony in 
this cause. 

Objection by plaintiff; objection sustained; to which 
ruling of the court, the defendant by its counsel, 
then and there duly excepted. 

Mr. CuiperFieLtp: ). I will ask you to state, Mr. Traer, 

3543 what in your opinion and judgment, was the fair cash 
market value of this property in the year 1905? 

Objection by plaintiff; objection sustained; to which 
ruling of the court, the defendant by its counsel, 
then and there duly excepted. 

Mr. CHrIPERFIELD: @. You may state, Mr. Traer, what 
in your judgment and opinion was the fair cash market 
value of this property in the year 1904. 

Objection by plaintiff; objection sustained; to which 


786 


ruling of the court, the defendant by its counsel, 
then and there duly excepted. 

3544 Q. Iwill ask you to state what was the fair cash mar- 
ket value of this property in the year 1903? A. In my 
opinion it was worth $50 an acre as a coal property in 
1903 plus whatever the value of the surface may have 
been. 


Cross-Examination by Mr. O’Conor. 


I have answered questions only in relation to the coal 

that underlay the ground. My answers are directed sim- 

3045. ply as to the value of the coal. Taking the coal prop- 

erty alone, thinking of it alone, I don’t think turning the 

water into the [llinois River would increase or diminish 

the value. The river would have no effect upon its value. 

3546. The flooding of land underlaid with coal would not in- 
crease the value of the coal. 


3047 Epwarp T. Bent, a witness for defendant, being sworn, 
testifies as follows: 


Direct Exammation by Mr. Chiperfield. 


My name is Edward T. Bent. I reside in the City of 
Chicago. Am engaged in the coal mining business at 
Oglesby, just south of La Salle and at Rutland. Oglesby 
is 24 miles by rail and about four miles by wagon road 
from La Salle. I am acquainted with the premises of the 
La Salle County Carbon Coal Company lying east of the 
Peru road on the south side of the river, also lying east 
and west of the Illinois Central right of way and east 
and west of the C., B. & Q. right of way across from Peru 
and La Salle. 

I am 50 years old and have been engaged in the coal 
mining business at Oglesby all my life. Our mine is lo- 

3048 cated less than two miles from the lands you described. 


787 


I have an opinion as to the fair cash market value of 
those lands after 1900. 

@. You may state what, in your opinion, was the fair 
cash market value of the land which I have described to 
you, I will say shortly after January, 1900? 

Mr. O’Conor: We object to that. 

Objection sustained; to which ruling of the court the 
defendant, by its counsel, then and there duly ex- 
cepted. 

Mr. CHIPERFIELD: Q. You may state, Mr. Bent, what . 
in your judgment and opinion was the fair cash market 
value of those lands, say, in January, 1900? 

A. About $50 an acre, exclusive of the surface for 
other purposes than coal mining. 


3549 R. A. Carrer, a witness for defendant, being sworn, tes- 
tifies as follows: : 


Direct Examination by Mr. Chiperfield. 


‘My name is R. A. Carter. I reside at Ottawa. I am 
engaged in the grain business; have been all my life. I 
have given attention to the grading of corn and am fa- 
miliar with the grades of corn as established by the in- 

3550 spection department of the State of Illinois. The grades 
are No. 1, No. 2, No. 3, No. 4, and sample. Sample is the 
gerade they used to call no grade, anything under No. 4. 
No. 4 corn is anything that will test under 22, I mean 22 
per cent. in moisture. 

_ | have examined the corn in the cribs on the land occu- 
pied by the La Salle County Carbon Coal Company. The 
eribs are down near La Salle and Peru. There was one 
long erib south of the river and west of the Illinois Cen- 
tral. I made an examination of that corn. That corn 

3551 was a pretty poor grade of corn, it would not go better 

than sample grade. I should say there was around 1,000 


788 


to 1,200 bushels there. The corn was green. ‘T'o the best 

3002 of my knowledge I should say the corn was worth about 
30 cents. No. 4 corn varies from 35 to 40. 

I have had an opportunity to see and inspect high land 
corn this year, A large per cent. of that will grade No. 
4 and the remainder, a small per cent. of it going sam- 

3553 ple grade and a small per cent. is going No. 3. The ma- 
jority of the corn that is raised this year or that I have 
seen this year is grading below 22. I think there was 26 
or 27 per cent. moisture in the corn that I say was sample 
erade. No. 4 is under 22 and sample grade anything’ 
above that. 

3054 I saw another erib there which we examined up near 
the shaft. It was right in there by their cars. Went 
right up where they had their props. It was a good sized 

3005 crib; there was some old corn and some new corn. The 
new corn in the crib would grade No. 4. To the best of 
my knowledge its market value would be 35 or 36 cents. 

We found also another crib which was south of the 
river and across the river from Peru. The corn in that 
crib was sample grade and in my opinion was worth 30 
cents per bushel. There were three cribs there, a double 
crib and a single crib there together, that was all the 
eribs. In that erib I did not figure it up, but I would 

3556 estimate that there was at least 3,000 bushels there in 
the double erib and single crib together. I would figure 
that there was 3,000 bushels of corn. The ears were an 
average size. It was mixed as to color, part white and 
part yellow. 

3557 +The two cribs I said would grade No. 4, was fairly well 
matured. The other cribs were green. 


Cross-Examination by Mr. O’Conor. 


T live in East Ottawa; moved there about July Ist. I 
went to examine this corn on the 30th of November, three 


789 


3005 days ago. The first crib we examined was over south of 
the river and west of the Illinois Central. I don’t know 
whether that wag the crib of Michael Charley of La Salle 
or not. I don’t know whether that is the crib in which 
he put the corn he raised on the bottom, the portion that 
he farmed this year. That corn was sample grade. It 
was too wet and too green to grade. 

‘There isn’t any No. 1 grade corn, nor hasn’t been any 

3009 No. 2 new corn onthe market. No. 2, without reference to 
whether it is old or new, would be worth about 50 cents 
in the country. No. 3 is about 41; sample, about 30. It 
depends whether the price of corn is increased somewhat 
during the past ten years. Corn is about as low now as 
it has been in ten years. 

I don’t know anything about the expense of raising 
the crop. 

The next crib that we saw was a crib up near the shaft, 

3060 over across the river. There was 800 to 1,000 bushels 
of new corn. We estimated that that corn would grade 
No. 4. That is not the lowest grade; sample grade is the 
lowest. 

The other cribs were located south of Peru, two double 
cribs and one single crib and contained about 3,000 bush- 
els, 

3561 R. A. Center was with me. Mr. Malone was with me. 

3562 I did not notice any worms in the corn. We examined it 
very carefully, took it out, broke the ear and dug down 
into the cribs. 


Re-direct Examination by Mr. Cliperfield. 


Number 3 corn has to test under 194 per cent. of 
moisture. I cannot tell offhand what No. 2 is, there is 
so little No. 2, we don’t figure on it. 


790 


3063 R. A. Center, a witness for defendant, being sworn, tes- 
tifies as follows: | 


Direct Examination by Mr. Chiperfield. 


My name is R. A. Center, I live in Fall River Town- 
ship La Salle County. Business, farming. I have made 
a study of the grading of corn. I have been in the grain 
business five years and have been farming all my life the 
rest of the time. 

Saturday last I made an inspection of corn on the 
premises of the La Salle County Carbon Coal Company. 
The ribs were located, two of them south of La Salle 
and one south of Peru. Mr. Carter was with me. We 

3564 inspected the cribs together. The first crib we visited 
the corn was what we would call sample grade. That is, 
corn that won’t grade. No. 4, is the next grade above 
that. The corn that was in that crib was worth about 30 
cents a bushel. I could not tell the number of bushels be- 
cause I did not take that in view at all. 

3065 The next crib we inspected was a double crib by the 
coal shaft. It was part old corn and the other half was 
new yellow corn that would grade No. 4. The corn was 
worth five cents a bushel more than the other. I cannot 
state how much there was in the crib. 

The other crib was a double crib and a single crib south 
of Peru. Big white and yellow corn that would go sample 
grade. It was worth about 30 cents a bushel. I did not 
estimate the number of bushels. 

Q. Now, have you seen or observed the corn that is 
raised this year on the uplands? A. Only my own. 

Q. Was that upland corn? A. Yes, sir. 

Q. What did that corn grade? 

Objection by plaintiff; objection sustained; to which 

3566 ruling of the court, the defendant by its counsel, 

then and there duly excepted. | 


791 


The sample grade corn that I saw was what I would 
term large ear corn; the No. 4 is not. I don’t know 
whether corn on the uplands this year is grading better 
than No. 4. The corn was partly dented, a portion of it 

3567 was glazed and a portion was not. I should judge about 
half of it was dented and about half of it was glazed. Mr. 
Carter and I were together. 


Cross-Examination by Mr. O’Conor. 


3068 ‘There were two large cribs and a single erib that would 
not grade. One double crib would grade. One placé 
south of Peru there was a double crib and a single erib. 
Another place a single crib and another place a double 
crib. Those were all the cribs we examined. The other 
cribs were farther east, probably about south of La Salle 

3069 near the coal mine at Jones. The corn south of Peru 
would not grade. 


Wituim V. McKrnuey, a witness for defendant, being 
sworn, testified as follows: 


Direct Examination by Mr. Chiperfield. 


3570 My name is William V. McKinley. I reside at Havana, 
Illinois. I am a marine engineer. Chief engineer of the 
steamer Illinois. I have been in the service of the state 
about twenty years. I have been connected with the 
Illinois eleven years; prior to that time I was chief en- 
gineer on the Reindeer. It was a state boat. I have 
held a license as an engineer on the Illinois River for 
twenty-six years. Before that I was a pilot on the Ha- 
vana and several other boats, I don’t know just what 

3571 they were now. I was not a licensed pilot at that time. 

I am acquainted with the [linois River and have known 
it all my life. I am forty-seven years old. I was ac- 


792 


quainted with it before 1900 from one end of the 
stream to the other. Since 1900 there has been a small 
change in the level of the river at low water mark. There 

3072 has been an increase in the water about twelve or fif- 
teen inches at low water, as near as I can recall. 


The highest water I ever knew was in 1892. I have 
not known it to be as high since that time. I have had 
a chance to see and observe the tributary streams of the 
Illinois as they flow in. During the last eight or ten 
years there have been more freshets in them; that is, 
when a rain would fall it would raise them quicker. 
Since 1900 the current of the river has increased. Be- 
fore 1900, I suppose it was a mile and a half. Since 
that time it is three miles and a half an hour. 


3573 As engineer I kept the log of the boat. It gives me 
a chance to tell how much better time we make up the 
river at different times at different stages of water. I 
note on the log the time it takes to traverse certain dis- 
tances. The difference in our time down the river and 
up the river is about three miles an hour as a general 
thing. 

Before any of the drainage districts were put in the 
Illinois River was in places three or four miles wide. 

3574 Since the districts have gone in the width of those places 
is not over half a mile. The place at Havana. It is also 
true at Beardstown for quite a distance. 


IT recall about the time of the opening of the district 
channel. I made no observation concerning it, as I was 
on the Mississippi River at that time. 


3575 No cross-examination. 


198 


Martin Houston, a witness for defendant, being sworn, 
testified as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Martin Houston. I reside at Pekin, [li- 
nois. I am a pilot on the Illinois River; forty-three 
years of age. I have been a pilot for twenty-three years. 
The last seven years I have been with the Swain people. 
Tam now with the steamer Percy Swain. The headquar- 
ters of the Swains are at Peru or La Salle, rather in the 
basin. We run from La Salle to Peoria. I have put in 
ten years on that run; not steady, but off and on. Seven 
years steady. Make the round trip every other day from 
the first of April until the 25th of November, with the 
exception of two months, then every day during the sum- 
mer season. 

When our boat is lying at La Salle it is lying at the 
Peru dock. They are about two blocks above the Peru 

3577 bridge, I should judge a mile and a quarter from lock 15. 

I am familiar with the Illinois River from Grafton 
to La Salle, the head of navigation as they claim. I 
have never been above La Salle with a steamer. Have 
been up with a gasoline boat. I have run the Fred 
Swain, the Davis Swain and the Perey Swain, the City 
of Peoria, steamer Isabelle, G. M. Sidley and Speed. I 

3578 have been up and down the Illinois River between La 
Salle and Peoria every season within seventeen years. 
3579 Hard to say how many times I have made the trip. 
During July and August every day, and every other 
day from April 1st until the 20th or 25th of November. 
I have observed the high and low water. I remember the 
high water. of ’92. I was at Pekin at that time. There 
was a hard rainfall raised the river very rapidly and 
broke in through some of the levees. The water came 


194 


down with such a rush it couldn’t get through those 
narrow places. The levees being along the river it would 
make narrow places and wouldn’t let it back water as it 
used to and it had to go somewhere. Since 1892 I have 

3080 not seen as high water to my knowledge. 

Since 1900 I have observed a difference in the L[llinois 
River between that time and the time since, so far as low 
water is concerned. The water does not get down quite 
as low. It is about the same in low water season. It is 
according to the wet weather and dry weather as we 
have it. There isn’t very much difference to be noticea- 
ble. In dry weather the water gets down so we have 
to use the locks at Henry when we are going through. 
In high water we can go over the dam. 

I know a boat man by the name of Hawley. I know 
his boat. I remember at one time he was stuck at a bar 
right above the Henry locks. We had to pull him off. 
I cannot say how long ago that was. It was in the neigh- 
borhood of six years. 

3081 Before 1900 the water got very stagnant. There 
wasn’t much of a current. There wasn’t any to speak 
of at all. Perhaps a quarter of a mile to the hour. Since 
1900 there is at low water, I should judge, three miles | 
an hour. As a pilot we notice the current of the stream 

3982 to a great extent as we go through it. It is at low water 
I would judge something in the neighborhood of twelve 
to thirteen or fourteen inches since 1900. I haven’t taken 
very particular pains to notice only running the dam 
and such as that, and landmarks along the river where 
we land. I know by that. 

I have seen the bottom lands across the river from 
Peru overflowed in times of high water. Seemed to be 
seven or eight feet of water. The river spreads out 
over the low land. It rises quick and goes down quick. 
A narrow stream and can’t go through it as it should 
and makes an overflow, 


795 


I have noticed the tributaries along the Illinois River 

in the last eight or ten years. he creeks that used to be 

30983 dry are running water the year around nowadays. Most 

of them full of water, running water; that is, not full, but 

there is running water; they don’t go dry. The higher 

the water increases the current is pretty swift. I should 

judge since 1900 there has been a current of six or seven 

miles an hour in high water. I think the current is 
swifter now than before. 

3084 I know the river is filling up so that in a good stage 
of water it is difficult to get through above the dam at 
Henry. I have observed that for five or six hundred 
yards. Our boat draws thirty inches. 

I have noticed the drainage districts down the river. 
They narrow the channel to a great extent. 

3085 I have never done any boating on the Mississippi. I 
am engaged in the freight and passenger business from 
Peoria to Peru and La Salle. 


Cross-Examination by Mr. O’Conor. 


The stuff settling in the river back of the Henry dam 
is sand and mud brought in there from the creeks and 
the drainage of land which washes in and the farm lands 
being tiled. I know of farm lands back which have more 
or less been tiled and ditched out to dispose of the high 
water and rainfalls. I have seen where they were tiling 
and seen the creeks as they flowed into the [linois River. 
They make sand bars which the government is taking 

3086 out. That has been going on for the last seven or eight 
years as I remember; had not been so much before. I 
cannot say how much land above the Henry dam has 
been drained into the Illinois River in the last seven 
years. I have been hunting over it. 

3087 The spring freshets take more land than they leave. 
They bring more land to the river than they did before 


796 


the land was tiled. I think most of the soil comes from 
the surface of the lands. 


0088 I have seen rainfalls when the water would run two 
feet from the banks of the river for a quarter of a mile. 
That washes in and fills up a bar. They did not do that 
to a great extent before the timber was cut off, which 
gives it a chance. 


I notice a difference in the color of the water itself. 
It is purer and cleaner. I have seen it when it was filthy ; 
3589 you couldn’t stand it to eat a meal along the Illinois 
River. That was around Lacon and Havana. The fish 
all died. We never see any more of this and don’t have 

the stagnant odor. 


3090 Have noticed the water at Peru since the Sanitary 
Distrist water was turned in. As a rule there has been 
eight to twelve feet of water there. The Peru bridge, I 
should say, is five or six hundred feet wide. There has - 
been a change in the speed of the river as much as at 
other places. There was always a little more current 
there. I should judge the current is two and a half miles 
during the summer months along there. 


3091 I have noticed the water is clear all along from Peru 
to Peoria. We have several bars from Peoria to Peru 
that gets very shoal on us during low water. 


The levees I speak of was the Pekin levee as being 

affected in 1892. I remember the high water of 1902. 

I couldn’t tell the difference between the two by the 

3092 gauge. Before 1892 the high water was in ’83 or ’84. 

In high water the river is swifter now than it used to be. 

I could not say, but I know we have a good current. It 

35993 is faster to my best judgment. I know it makes more 

speed that it did before. In high water it runs off faster. 

3094 Cannot judge the speed of high water as well as when 
the water is down in its banks. 


OT 


3595 KE. B. Spencer, a witness for defendant, being sworn, 
testified as follows: | 


Direct Examination by Mr. Chiperfield. 


My name is I. B. Spencer. I reside in Chicago. I am 
in the employ of the Sanitary District as photographer. 
I have been engaged in the business of photography 
thirty-five or forty years. I understand the science of 
making and developing pictures and have been familiar 
with this work forty years. I make pictures for the 
Sanitary District. J use a camera with a regular stand- 
ard lens. When I say regular standard lens I mean a 

3596 regular rectilinear lens. I mean a corrected lens. The 
pictures are 5x8. The pictures I make are correct re- 
productions of the objects photographed, and show the 
objects in their true proportion to each other. No ex- 
aggeration or distortion. 

In the pictures concerning which you are about to ask 
me I used this lens in all cases. Concerning the develop; 
ment of these pictures, I went into the field and made 

3097 the exposure and brought them home and went into 
the dark room and developed them. As a result of the 
development process which I used nothing appears in 
the picture which did not appear in the negative, except 
the number. They were in no way manipulated or 
changed. The number on the picture with a pen is put 
on backwards so as to appear correctly on the photo- 
graph. The numbers are put on for a file number and 
the date and year they were taken. The pictures have 

3098 not been retouched or anything. They each truly, cor- 
rectly and accurately reproduce the scene that was taken 
by me. 

I have a number of these pictures. I believe there 
are two or three of them not numbered. 


798 


I have a view of the Chicago harbor. 

Photograph produced and marked Exhibit 112. 

That is the entrance to the Chicago River from Lake 
Michigan. The building on the right is the government 
life saving station. he tower in the distance is the 
government light. There is a breakwater shown on the 

30999 picture. This is the entrance of the Chicago River from 
the lake. 

3600 I have a view of the entrance of the Chicago harbor 
and Chicago River showing a boat leaving the Chicago 
River and entering the harbor outward bound. 

Which said photograph was marked Exhibit 113. 

I have a picture bearing the number 2287 containing a 
view of the Chicago River at the State street bridge, the 
bridge in the distance being the Dearborn street bridge. 

Which said photograph was marked Exhibit 114. 

3601 I have a picture bearing number 3916 which is a view 
of the Metropolitan bridge over the Chicago River just 
north of Van Buren street, showing the channel of the 
Chicago River at that point. 

Which said photograph was marked Exhibit 115. 

I have a picture numbered 3918, being a view of the 
Van Buren street bridge open and the Metropolitan 
bridge in the distance closed. 

Which said photograph was marked Exhibit 116. 

T have a picture, No. 3934, a view of the Chicago River 
at Polk street, looking north, showing the Polk street 
bridge under construction. 

3602 Which said photograph was marked Exhibit 117. 

Picture No. 3933 is a view of the Chicago River at 
Fourteenth street. 

Which said photograph was marked Exhibit 118. 

I have a view of the main channel of the Sanitary Dis- 
trict of Chicago at Willow Springs. 

Which said photograph was marked Exhibit 119. 


799 


I have a view of the great curve on the drainage chan- 
nel at Romeo, looking upstream. 

Which said photograph was marked Exhibit 120. 

Photograph No. 1593 is a view of the Bear Trap Dam 
showing a discharge at the time of the taking of the view 
of 300,000 cubie feet per minute. 

Which said photograph was marked Exhibit 121. 


I have a view of the windage basin at Lockport, Illi- 
nois, No. 1378. 

Which said photograph was marked Exhibit 122. 

I have a view of the tailrace of the Sanitary District 
of Chicago immediately below the Bear Trap Dam which 
eonnects the main channel of the Sanitary District with 
the Desplaines River, made at a time when the Bear 
Trap Dam was closed and no discharge entering the tail- 
race. 

Which said photograph was marked Exhibit 123. 


I have a view from the same point, the only difference 
being the discharge is 300,000 cubic feet per minute pass- 
ing over the Bear Trap Dam into the tailrace. My num- 
ber is 3280. 

Which said photograph was marked Exhibit 124. 


Photograph No. 327 is a view of the junction of the 
Sanitary District tailrace and the Desplaines River a 
short distance below the Bear Trap Dam, taken at a 
time when the Bear Trap Dam was closed and no water 
discharged from the main channel of the Sanitary Dis- 
trict. 

Which said photograph was marked Exhibit 125. 


Photograph 3281 shows the same view as the last 
stated with the addition of 300,000 cubic feet per minute 
flowing from the main channel of the Sanitary District. 

Which said photograph was marked Exhibit 126. 


3604 Photograph 158 shows a view of the Desplaines River 


800 


looking northeast upstream from the Summit highway 
bridge 

Which said photograph was marked Exhibit 127. 

The photograph 169 shows a view of the Desplaines 
River looking downstream from the Summit highway 
bridge. 

Which said photograph was marked Exhibit 128. 

Photograph 170 is a view of the Desplaines River look- 
ing upstream from the Willow Springs highway bridge. 

Which said photograph was marked Exhibit 129. 

Photograph 171 is a view of the Desplaines River look- 
ing downstream from the Willow Springs highway 
bridge. 

Which said photograph was marked Exhibit 130. 

Photograph No. 172 shows a view of the Desplaines 
River looking upstream from Lemont highway bridge, 
the bridge in the foreground being the Santa Fe Rail- 
road bridge. 

Which said photograph was marked Exhibit 131. 

Photograph No. 173 is a view of the Desplaines River 
looking downstream from the Lemont highway bridge. 

3605 Which said photograph was marked Exhibit 132. 

When there appears to be a date on these photographs 
it means the picture was taken on that date. 

Photograph No. 793 is a view of the Desplaines River 
at Riverside showing flood conditions. 

Which said photograph was marked Exhibit 133. 

Photograph No. 794 is a view of the dam across the 
Desplaines River at Riverside. 

Which said photograph was marked Exhibit 134. 

Photograph No. 4104 is a view of the Atchison, To- 
peka & Santa Fe tracks between McCook, Illinois, and the 
Desplaines River bridge near Lyons, Illinois, showing 
the main line of tracks of the Santa Fe Railroad. 

Which said photograph was marked Exhibit 135, 


801 


3606 Photograph No. 4103 shows the territory north of the 

Desplaines River at Summit, Illinois. 

Which said photograph was marked Exhibit 136. 

Photograph 4100 shows the highway north of the Des- 
plaines River between Summit and Lyons, Illinois. 

Which said photograph was marked Exhibit 137. 

Photograph 2707 is a view at Romeo on the Desplaines 
River. 

Which said photograph was marked Exhibit 138. 

Photograph 2706 is a view of the Romeo highway a 
short. distance from the Desplaines River. 

Which said photograph was marked Exhibit 139. 

Photograph 2704 is a view of the east branch of the 
Desplaines River between Romeo Island and the main 
channel of the Sanitary District, the spoil banks of which 
are shown in the distance, together with the view over 
the main channel leading to the Village of Romeo. 

Which said photograph was marked Exhibit 140. 

I have a photograph No. 2705, being a view of a branch 
of the Desplaines River along the east side of Romeo 

3608 Island, highway shown running east across the main 

channel of the Sanitary District. 

Which said photograph was marked Exhibit 141. 

Photograph No. 2701 is a view of the highway bridge 
at Lemont, Illinois, a portion of which was destroyed in 
the Desplaines River flood of March, 1904. 

Which said photograph was marked Exhibit 142. 

Photograph No. 810 is a view of the west dam across 
the Du Page River at Channahan, Illinois, the east dam 
being about 500 feet east of the end of the dam in this 
view. 

Which said photograph was marked Exhibit 148. 

Photograph No. 812 is a view of the Du Page River 
near Smith’s bridge, showing the mouth of the Du Page 
River where it enters the Desplaines River, looking down- 
stream. 


802 


Which said photograph was marked Exhibit 144. 

Photograph No. 657 is a view of the bridge over tha 
Yellow River at Knox, Indiana. 

Which said photograph was marked Exhibit 145. 

Photograph No. 650 is a view of bridge over ditch 
about a mile and a half north of Knox, Indiana; bridge 
shown in picture is one which is being erected to replace 
one washed out. 

Which said photograph was marked Exhibit 146. 

View No. 651 shows the new Kankakee River looking 
downstream from bridge near Jackson Island Club, In- 
diana. 

Which said photograph was marked Exhibit 147. 

Photograph No. 652 shows the new Kankakee River 
looking upstream from bridge near Jackson Island Club, 
Indiana. 

Which said photograph was marked Exhibit 148. 

Photograph No. 653 is a view of the old Kankakee 
River, about a quarter of a mile from the bridge near 
Jackson Island Club, Indiana, looking downstream. 

Which said photograph was marked Exhibit 149. 

Photograph No. 655 is a view of a drainage ditch about 
a quarter of a mile from the old Kankakee River near 
Jackson Island Club, Indiana. 

Which said photograph was marked Exhibit 150. 

Photograph No. 658 is a picture of the bridge over 
the old Kankakee River between San Pierre and Wilders, — 
Indiana. 


3609 Which said photograph was marked Exhibit 151. 


Photograph 656 is a view of the drainage ditch about 
one mile from the old Kankakee River. 

Which said photograph was marked Exhibit 152. 

Photograph 659 shows a view of the new Kankakee 
River between San Pierre and Wilders, Indiana. 

Which said photograph was marked Exhibit 153. 


803 


View No. 660 shows the Mockler ditch near Wilders, 
Indiana, looking upstream. 

Which said photograph was marked Exhibit 154. 

View No. 661 shows the Mockler ditch near Wilders, 
Indiana, looking downstream. 

Which said photograph was marked Exhibit 155. 

View No. 798 shows a dam in the Kankakee River at 
Waldron, Illinois. 

Which said photograph was marked Exhibit 156. 

3610 View No. 797 shows the Kankakee River and bridge at 
Waldron, Illinois. | 

Which said photograph was marked Exhibit 157. 

View No. 795 shows the [Iroquois River looking towards 
the Kankakee River. 

Which said photograph was marked Exhibit 158. 

View No. 796 shows the Iroquois River looking up- 
stream from the Kankakee River. 

Which said photograph was marked Exhibit 159. 

View No. 1334 shows the dam in the Kankakee River 
at Wilmington. 

Which said photograph was marked Exhibit 160. 

View No. 1335 shows the Kankakee River at Wilming- 
ton, Illinois, showing the highway bridge looking down- 
stream. 

Which said photograph was marked Exhibit 161. 

View 1336 shows the bridge over the creek at Wilming- 
ton, Illinois, which empties into the Kankakee River. 

Which said photograph was marked Exhibit 162. 

3611 View 702 shows the mouth of the Kankakee River at 
Dresden Heights and the mouth of the Desplaines River 
shown near the bank of crushed stone near right of the 
picture. View shows portion of cofferdam in place about 
half way across Desplaines River. Illinois River begins 
at this point and runs south, parallel to Illinois and Mich- 
igan Canal. Dresden Heights Bluffs are shown in the 


804 


distance. The Kankakee River at this point being nearly 
1,000 feet, Kankakee being shown at the right of the pic- 
ture, and the point projecting into the river immedi- 
ately in the foreground at left of the picture. 

Which said photograph was marked Exhibit 163. 

View 2660 shows an ice gorge in the Desplaines River 
looking upstream from a point near the mouth of the 
Desplaines and Kankakee Rivers. 

Which said photograph was marked Exhibit 164. 

View 2663 shows a view of an ice gorge in the Illinois 
River, the mouth of the Kankakee River being shown 
at the right of picture and the mouth of the Desplaines 
River at the extreme left. 

Which said photograph was marked Exhibit 165. 

3612 View No. 1056 is a view of the E. J. & E. bridge over 
the Illinois River at Divine looking upstream. 

Which said photograph was marked Exhibit 166. 

View 809 is a view of the bridge over the Aux Sable 
River, about ten miles above Morris, Illinois. 

Which said photograph was marked Exhibit 167. 

View 707 shows the mouth of the Aux Sable in the dis- 
tance, looking towards the Illinois River. 

Which said photograph was marked Exhibit 168. 

View 1310 shows a view of stone bridge over the Aux 
Sable River just above the mouth of the Illinois River 
and near the Aux Sable locks on the Illinois and Michi- 
gan Canal. 

Which said photograph was marked Exhibit 169. 

3613 This picture shows a view of the Aux Sable River 
just north of the stone highway bridge above the mouth 
of the Aux Sable River and near the Aux Sable locks 
about eight miles above Morris, Illinois. 

Which said photograph was marked Exhibit 170. 

View 1331 shows the Mazon River looking upstream 
three miles southeast of Morris, Illinois, showing new 
bridge over river. 


805 


Which said photograph was marked Exhibit 171. 

View 1332 shows the Mazon River looking upstream 
about three miles southeast of Morris. 

Which said photograph was marked Exhibit 172. 

View 1333 is a view of the junction of the Mazon and 
Illinois Rivers about 1,000 feet above Morris highway 
bridge over the Illinois River. 

Which said photograph was marked Exhibit 173. 

3614 View 1059 is a view of the Morris highway bridge over 
the Illinois River looking downstream from a point near 
the mouth of the Mazon River. 

Which said photograph was marked Exhibit 174. 

View 1063 is a view of the Kankakee and Seneca Rail- 
road bridge over the Illinois River looking upstream one 
mile east at Seneca, Illinois. 

Which said photograph was marked Exhibit 175. 

3615 View 806 is of the Mazon River near the Pleasure Club 
House, southeast of Morris and about three miles above 
its junction with the Illinois River, looking downstream. 

Which said photograph was marked Exhibit 176. 

View 807 is a view of the Mazon River looking up- 
stream from the same point as shown in picture 806. 

Which said photograph was marked Exhibit 177. 

View No. 142 is a view of the Marseilles dam across 
the [llmois River, looking north, showing the gates at 
head-race at right of picture, view taken looking north. 

Which said photograph was marked Exhibit 178. 

3616 View 1007 is a view of the Illinois River with the Mar- 
seilles dam drowned out by an ice gorge, view shown 
looking southeast. 

Which said photograph was marked Exhibit 179. 

View 1009 is a view of the Illinois River and the Mar- 
seilles highway bridge taken from the north end of the 
Marseilles dam. 

Which said photograph was marked Exhibit 180. 


806 


View 784 is a view of the junction of the Fox and 
Honey Rivers at Burlington, Wisconsin. 

Which said photograph was marked Exhibit 181. 

View 785 is the bridge over the Fox River at Burling- 
ton, Wisconsin. 

Which said photograph was marked Exhibit 182. 

3617 View No. 780 shows the dam in the Fox River at Elgin. 

Which said photograph was marked Exhibit 183. 

View 781 is a view of the Fox River at Elgin, taken 
at the watch factory. 

Which said photograph was marked Exhibit 184. 

View 782 is a view of the watch factory bridge over 
the Fox River at Elgin. 

Which said photograph was marked Exhibit 185. 

View 778 is the west dam in the Fox River at Aurora, 
Illinois. 

Which said photograph was marked Exhibit 186. 

View 1337 is the Fox River at Aurora, Illinois. 

Which said photograph was marked Exhibit 187. 

3618 View 623 is of the Fox River looking upstream from 
Dayton highway bridge four miles above Ottawa. 

Which said photograph was marked Exhibit 188. 

View 800 is the Fox River taken from the Dayton high- 
way bridge, looking upstream. 

Which said photograph was marked Exhibit 189. 

View No. 624 is a view of the Fox River a short dis- 
tance above Dayton highway bridge, four miles above 
Ottawa. 

Which said photograph was marked Exhibit 190. 

T also have another view of the Fox River taken at the 
same point. 

Which said photograph was marked Exhibit 191. 

View 625 is a view of the Fox River bridge at Dayton, 
looking downstream. | 
~ Which said photograph was marked Exhibit 192. 





807 


3619 View 801 is of the Dayton highway bridge from the 
Fox River, looking upstream. 

Which said photograph was marked Exhibit 193. 

View 803 shows the Main street bridge over the Fox 
River at Ottawa, Illinois. 

Which said photograph was marked Exhibit 194. 

View 802 shows the mouth of the Fox River where it 
enters the Fox River at Ottawa. 

Which said photograph was marked Exhibit 195. 

View 1068 is a view of the Illinois River showing the 
Ottawa highway bridge, view taken from the C. B. & Q. 
Railway bridge at Ottawa, Illinois. 

Which said photograph was marked Exhibit 196. 

3620 View No. 804 is a view of the Vermillion River, looking 
downstream, at Streator, Illinois. 

Which said photograph was marked Exhibit.197. 

View 805 is a view of the Vermillion River, looking up- 
stream from the same position from which Exhibit 197 
was taken. 

Which said photograph was marked Exhibit 198. 

View 1323 is a view of the Vermillion River, looking 
downstream at the highway bridge at Streator, Illinois. 

Which said photograph was marked Exhibit 199. 

View 1325 is the Vermillion River at Streator, Illinois, 
looking downstream. 

Which said photograph was marked Exhibit 200. 

3621 View 1326 shows the dam across the Vermillion River 
about two miles above Streator, Illinois. 

Which said photograph was marked Exhibit 201. 

View 1329 is Bailey’s falls in the Vermillion River 
about four miles above the mouth of the Vermillion 
River. 

Which said photograph was marked Exhibit 202. 

View 1330 is a view of the rapids in the river near 
Bailey’s falls, about four miles above the mouth of the 
river. 


808 


Which said photograph was marked Exhibit 203. 

View 90 is a view of the Illinois River taken below the 
Shippingsport bridge at La Salle, [llinois, looking north- 
west, the plant in the distance being the zine works at 
Peru; the land claimed by the Carbon Coal Company be- 
ing on both sides of the river. 

Which said photograph was marked Exhibit 204. 

View 91 is a view of the Carbon Coal Company’s al- 
leged lands opposite the mouth of the Illinois and Mich- 

3622 igan Canal, Peru being shown at the right hand of the 
picture. 

Which said photograph was marked Exhibit 205. 

View 98 is a view looking north from Mr. Boers’ resi- 
dence in Section 28, Peru being shown in the distance, 
the land claimed by the La Salle County Carbon Coal 
Company in the center of the picture. 

Which said photograph was marked Exhibit 206. 

View 93 is of the south side of the Illinois River just 
east of the south end of the Peru highway bridge, the 
zine works being shown in the distance. 

Which said photograph was marked Exhibit 207. 

View No. 92 is a view of the south end of the Peru 
highway bridge from the south end of the Peru highway 

3623 over the Illinois River, looking southwest. 

Which said photograph was marked Exhibit 208. 

View No. 87 is of the land on the north side of the 
river, between the Illinois Central and C. B. & Q. Rail- 
ways. 

Which said photograph was marked Exhibit 209. 

View No. 74 is looking south from the Illinois and 
Michigan Canal opposite the electric light works at La 
Salle, showing Huse’ slough in the distance and Ship- 
pingsport belong Huse’ Lake. 

Which said photograph was marked Exhibit 210. 

View 75 shows lands along the south side of the Ili- 


809 


nois and Michigan Canal at the basin opposite La Salle 
and north of Huse’ Lake looking west. 
Which said photograph was marked Exhibit 211. 


3624 View No. 199 is taken from the Riddle Rock looking 


northwest, showing the south side of the river and Car- 
bon Coal waste bank and the City of La Salle in the dis- 
tance. 

Which said photograph was marked Exhibit 212. 

View 207 is the Illinois River taken from the south 
side of the river, showing the C. B. & Q. and Illinois 
Central Railroad bridges, looking north on the lands in 
question in this case. 

Which said photograph was marked Exhibit 213. 

View 235 is the spoil bank of the mine just east of La 
Salle, looking southeast towards the mouth of the Ver- 
million River, showing the land claimed by the La Salle 
County Carbon Coal Company on the north side of the 
river. 

Which said photograph was marked Exhibit 214. 

View No. 226 is taken from the south end of the Peru 
highway bridge, looking west, along the south bank of 
the Illinois River. 


3625 Which said photograph was marked Exhibit 215. 


View 227 is a view looking east from the Peru highway 
bridge, showing corn field on the south side of the Illinois 
River. 

Which said photograph was marked Exhibit 216. 

View 225 is a view of Section 21 in the southwest quar- 
ter of Section 21, near McCormick’s slough. 

Which said photograph was marked Exhibit 217. 

View 214 is a view of a portion of Section 21 looking 
north, Peru being shown at the left hand of the picture 
and La Salle at the right hand of the picture is the dis- 
tance. 

Which said photograph was marked Exhibit 218. 


810 


View 213 is looking northeast along the north bank of 
the Illinois River from the La Salle highway bridge over 
the Illinois River. 

3626 Which said photograph was marked Exhibit 219. 

View 210 is looking south from the Illinois and Mich- 
igan Canal basin opposite the electric light works at La 
Salle, showing a portion of Section 22. 

Which said photograph was marked Exhibit 220. 

View 209 is taken from the south side of the Illinois 
and Michigan Canal basin opposite the electric light 
works in La Salle, looking west, showing a portion of 
Section 21. 

’ Which said photograph was marked Exhibit 221. 

View 206 is taken on the south side of the Illinois River 
looking southwest from the south end of the Illinois 
Central Railway bridge. 

Which said photograph was marked Exhibit 222. 

View 205 is a view of a field west of the C. B. & Q. 
Railroad and the north bank of the Illinois River, taken 
from the Illinois Central Railroad bridge. 

Which said photograph was marked Exhibit 223. 

3627 View 204 is a view taken from the Illinois Central Rail- 
road bridge looking northwest towards La Salle, show- 
ing corn field between the Illinois Central and C. B. & Q. 
Railroads, and the spoil bank of the: La Salle County 
Carbon Coal Company being shown at the right of the 
picture. 

Which said photograph was marked Exhibit 224. 

View 203 shows the field south of the [linois River, 
taken from the top of the Illinois Central Railroad bridge 
at the north bank of the river, looking southeast, Oglesby 
being shown in the distance. 

Which said photograph was marked Exhibit 225. 

3628 View 202 is taken from the Illinois Central Railroad 
bridge looking east, showing a field along the south side 


811 


of the river in the foreground, the La Salle County Car- 
bon Coal Company’s waste bank at the left of picture in 
the distance, corn growing on the La Salle County Car- 
bon Coal Company’s land on the north side of the river. 

Which said photograph was marked Exhibit 226. 

View 529 is of the Illinois Valley bottoms looking north 
towards Peru, Illinois. 

Which said photograph was marked Exhibit 227. 

View 531 is the Llinois Valley bottoms looking north 
below Peru, Illinois. 

Which said photograph was marked Exhibit 228. 

View 535 is of the field just west of the Peru high- 
way, south of the Illinois River, McCormick’s slough be- 
ing shown at left of picture. 

Which said photograph was marked Exhibit 229. 

3629 View 539, taken from the Illinois Central Railroad 
bridge looking northwest, showing corn field along bank 
of the river, La Salle, Illinois, being shown in the dis- 
tance. 

Which said photograph was marked Exhibit 230. 


View 540 is a field on the north bank of the [linois 
River between the La Salle highway and the C. B. & Q. 
Railway bridge, La Salle being shown in the distance. 

Which said photograph was marked Exhibit 231. 


View 541 is looking west from the La Salle highway 
across the lands in Section 22 involved in this suit. 
3630 Which said photograph was marked Exhibit 232. 
View 773 is of the Illinois bottoms in Sections 21 and 
22 involved in this suit, taken from a point along the 
Illinois and Michigan Canal basin opposite the electric 
light works in La Salle, Illinois. 
Which said photograph was marked Exhibit 233. 


View 774 is a view of the corn fields between the La 
Salle highway at the north end of the highway bridge 


812 


over the river and the C. B. & Q. Railroad, looking north- 
east. 

Which said photograph was marked Exhibit 234. 

View 935 is a view of the [llinois Valley bottoms from 
the south bluff looking northeast towards Peru. 

Which said photograph was marked Exhibit 255. 

View 932 is of the corn field east of the Peru highway 
and near McCormick’s slough. 

Which said photograph was marked Exhibit 236. 

3631 View 931 is the corn field along the south bank of the 
Illinois River taken from the Peru highway just south of 
the river bridge. 

Which said photograph was marked Exhibit 237. 

View 930 is of the corn along the north bank. of the 
Illinois River near the mouth of Huse’s Lake. 

Which said photograph was marked Exhibit 238. 

View 939 is the corn field from the south bluff of the 
Illinois Valley in Section 20 and shows lands adjoining 
the lands involved in this suit, looking north towards La 
Salle, Illinois. 

Which said photograph was marked Exhibit 239. 

3632 View 928 is the corn field along the south bank of the 
Illinois River looking southwest from the south end of 
the Illinois Central Railroad bridge. 

Which said photograph was marked Exhibit 240. 

View 926 is the south bank of the [llnois River, show- 
ing corn field east of the south end of the Illinois Cen- 
tral Railroad bridge over the Lllinois River. 

Which said photograph was marked Exhibit 241. 

View 1087 is the Illinois River looking upstream from 
a point on the south bank of the Illinois River about 
1,000 feet below the Peru highway bridge. 

Which said photograph was marked Exhibit 242. 

3633 View 1086 is a view of a corn field of the north bank 
of the Illinois River looking east from the north end 


813 


of the La Salle highway bridge, showing the C. B. & Q. 
and [Illinois Central Railroad bridges in the distance. 

Which said photograph was marked Exhibit 243. 

View 1085 is a view of the Illinois River looking north 
at a point just west of the south end of the C. B. & Q. 
and the I. C. Railroad bridges over the Illinois River. 

Which said photograph was marked Exhibit 244. 

View 1153 shows the corn between the C. B. & Q. Rail- 
road and the Vermillion River on the La Salle County 
Carbon Coal Company’s alleged lands in Section 23. 

Which said photograph was marked Exhibit 245. 

View 1155 is a view of the corn west of the C. B. & Q. 
Railroad in Section 23 on property claimed by the Car- 
bon Coal Company. 

3634 Which said photograph was marked Exhibit 246. 

View 1157 is a view of the corn west of the C. B. & Q: 
Railroad in Section 23 on property claimed by the La 
Salle County Carbon Coal Company. 

Which said photograph was marked Exhibit 247. 

View 1158 is a view of corn field along the south bank, 
of the Illinois River west of the Illinois Central bridge 
and the La Salle highway bridge over the Illinois River 
and Shippingsport being shown in the distance. 

Which said photograph was marked Exhibit 248. 

View 1159 is a view of corn south of Huse’s Lake in 
the southeast quarter of Section 21 on the property 
claimed by the plaintiff. | 

Which said photograph was marked Exhibit 249. 

3635 View No. 1160 is a view of corn west of the Illinois 
Central Railroad bridge and east of the C. B. & Q. bridge 
north of the [Illinois River, view taken from the Illinois 
and Michigan Canal bank looking southeast. 

Which said photograph was marked Exhibit 250. 

View 1161 is of corn south of the [linois and Mich- 
igan Canal towpath, between the Illinois Central and C. 
B. & Q. Railroads north of the Illinois River. 


814 


Which said photograph was marked Exhibit 251. 

View 1162 is a view of corn on the north side of the 
Illinois River east of the Illinois Central bridge, view 
looking southeast. 

Which said photograph was marked Exhibit 252. 

View 1173 showing corn, potatoes and cabbage, east 
of the Illinois Central Railway, north of the Illinois 
River and west of the Little Vermillion River. 

Which said photograph was marked Exhibit 253. 

3636 View 1164 is a view of corn field east of the Peru high- 
way in the northwest quarter of Section 21 involved in 
this suit. 

Which said photograph was marked Exhibit 254. 

View 1165 is of corn east of the Peru highway in the 
northwest quarter of Section 21 involved in this suit. 

Which said photograph was marked Exhibit 255. 

View 1208 is a view of the Illinois River bottoms, 
north of the [llnois River, northeast of the mouth of 
the Vermillion River. 

Which said photograph was marked Exhibit 256. 

View 1212 is a view of corn in Section 24 involved in 
this suit, along the Vermillion River. 

Which said photograph was marked Exhibit 257. 

3637 View 1213 is a view of corn between the Vermillion 
River and the C. B. & Q. Railroad in Section 23, involved 
in this suit. 

Which said photograph was marked Exhibit 258. 

View 1214 is of the property claimed by the plaintiff 
north of the Illinois River, taken from the Illinois Cen- 
tral Railroad bridge, showing La Salle in the distance. 

Which said photograph was marked Exhibit 259. 

View 1217 is taken from the Illinois Central Railroad 
bridge looking northwest, showing corn field north of 
the Illinois River, and La Salle and Peru in the distance. 

Which said photograph was marked Exhibit 260. 


815 


View 1219 is of corn field north of Illinois River from 
a point at the north end of the La Salle highway bridge, 
showing the C. B. & Q. and I. C. Railroad bridges in the 
distance. 

Which said photograph was marked Exhibit 261. 

38638 View 1220 is of corn on the north side of the Illinois 
River between the La Salle highway and the C. B. & Q. 
Railroad bridge. 

Which said photograph was marked Exhibit 262. 

View 1221 is of corn field west of the La Salle high- 
way in Section 22, looking west. 

Which said photograph was marked Exhibit 263. 

View 1222 1s of the corn field looking southwest in 
Section 22. 

Which said photograph was marked Exhibit 264. 

View 1224 is of corn along the south side of the I[li- 
nois River just west of the Peru highway bridge. 

Which said photograph was marked Exhibit 265. 

3639 View 1225 is of corn in field south of the Illinois River 
just west of the Peru highway bridge. 

Which said photograph was marked Exhibit 266. 

View 1226 is of corn on Section 21 involved in this suit, 
east of the Peru road, south of the Illinois River. 

Which said photograph was marked Exhibit 267. 

View 1227 is of corn south of the Illinois River and 
east of the Peru highway in Section 21. 

Which said photograph was marked Exhibit 268. 

View 1229 is a view of the Illinois River bottoms look- 
ing north from the south bluff, Peru being shown in the 
distance. 

Which said photograph was marked Exhibit 269. 

3640 View No. 1231 is a view of the Illinois River looking 
north from the south bluff, showing Peru is the distance. 

Which said photograph was marked Exhibit 270. 

View 1320 is of corn west of the C. B. & Q. Railroad in 
Section 23 on lands claimed by the plaintiff. 


816 


Which said photograph was marked Exhibit 271. 

View 1707 is a view of corn field on the south side of 
the Illinois River, west of the I. C. Railroad bridge, the 
La Salle highway bridge being shown in the distance. 

Which said photograph was marked Exhibit 272. 

View 1701 is a corn field involved in this suit on Section 
21, taken near the center of the section east of Peru look- 
ing east. : 

Which said photograph was marked Exhibit 273. 

3641 View No. 1702 shows a sample of corn growing in the 
field shown in Exhibit 273. 

Which said photograph was marked Exhibit 274. 

View 1700 is of the Llinois River bottoms, looking 
northeast from the south bluff, showing the Cities of 
Peru and La Salle in the distance. 

Which said photograph was marked Exhibit 275. 

View 1705 is of corn field north of the Illinois River 
and west of the I. C. bridge and east of the C. B. & Q. 
Railroad and south of the IL. & M. Canal. 

Which said photograph was marked Exhibit 276. 

I have a view of the Illinois River bottoms looking 
north from the south bluff, showing the City of Peru in 
the distance. 

Which said photograph was marked Exhibit 277. 

3642 View 1704 is of the Illinois River bottoms looking 
northwest from the south bluff at a point just west of 
the C. B. & Q. Railroad, showing lands of the plaintiff 
and claimed by them and the Illinois Central bridge over 
the Illinois River in the distance. 

Which said photograph was marked Exhibit 278. 

Wherever the date appears on these pictures it is the 
date when the same were made. The list of descriptions 
in connection with these pictures as stated by you to me 
in these questions is a true and correct description of 
what the pictures purport to portray, and the scene 


817 


which the picture purports to portray in each of the ex- 
hibits which have been marked by the reporter is true, 

3643 faithful, correct and accurate. The distances are cor. 
rectly shown and appear in the pictures. None of the 
scenes have been magnified or distorted out of their true 
proportion. Each of the same is true, accurate and cor- 
rect. 


3644-3647 Exhibits 112 to 278, both inclusive, offered in evi- 
dence. 
Objection by plaintiff; objection overruled. 


Each of said exhibits received in evidence. 





3648-3672 Photographs. = 


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204.2-4-1906 





224 Northwest from Rito ae le bridge. 


B25 Southeast Vroom norin ena river soan te RR brid 
} 


202-3-4-/906 





L226 East along south bank Yenrnss Ae bridge. 


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ZT Look ing north Foward Peru from south bluff. 





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230 Northwest Trom Cee R bridqe 23. Nocthe ast from vow alle highw avy bt 1dq 





Mee Ceclion 22. West from ba Salle highway. 224 Sections Zioand 22 from -L&Ni. Canal embankment 


Simic en ee eee 





A234 Northeastecly {rom north end LaSalle hiqhway bridaé 
) 


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931- 7-29-1909 


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re -7 West from near south 


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« 
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BP: 


£2 





238 Zight bank Utnois T\ 


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rau highway brida: 





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245 Declion 2 Delween CBAQ RR. and Vermillion river 


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255 Corn east of Peru highway in northwest quarter section 21. 





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261 South side of [linois rier in section 21 east 


of Peru road. 


268 Corn in section 21 east 


of Peru road. 


ZGE orn, south side A|lineis river west of Peru highway. 





1227-8-18-/Fil 





269 \inois va\ley frow south bluff t< wara yera 


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/231- 8-18-1911 


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= ATs aS . ees pee , ; 7 ‘ —— 
mi Corn. i eclion Z3 west ol C. DBOoOwW Kk 5 Zale South Si are | \\iinois river west o} ere Re | 





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TAG eS Ulinois valley from south blu FF northeast tow | { Peru 


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fool ie) LWinois valley north from south bluff toward Peru 


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“— OF ih 
HMIEASITY GY (LitHOIS 








819 
8673 December 3, 1912, 9 a. m. 


W. J. Pownrs, a witness called by the defendant, testified 
as follows: 


Direct Examination by Mr. Chiperfield. 


My name is W. J. Powers. I am a civil engineer em- 
ployed by the Sanitary District. I know the premises 
involved in this suit. I was upon those premises yester- 
day and saw and observed them. I observed them yester- 
day with reference to overflow. I observed the condi- 

3674 tion of the land there, such as crops and so forth, go- 
ing through, and in the sloughs and water courses. I ob- 
served the stage in the Illinois River with reference to 
the land there, and the land with reference to the Illi- 

3675 nois River. There was no water on the land yesterday, 
not any that I could see, outside of the slough. 


I was in company with Professor Fraser and Heg- 
nauer at the time. 


Cross-Exanunation by Mr. O’Conor. 


3676 I have been on the land several times before yester- 
day, two or three times during the last week. The first 
time was in 1906 or 1907. I have been there at different 

3677 times since 1906 up to the present time. I have been 
connected with the Sanitary District for twelve years. 


3678 Yesterday the land that we first visited was in Section 
21. I know where Section 21 is from the government 
maps and the Sanitary District maps; also the section 
corner, the southwest corner stone at Section 21. I prac- 
tically covered the whole tract of 21 yesterday. I did 
not make any estimate as to the number of acres. J had 

3679 no. occasion to compute the number of acres. IJ should 
judge there are from 367 to 370 acres. They were lo- 


820 


cated in the fractional northeast quarter, northwest quar- 
ter, southeast quarter and southwest quarter of Section 
21. The acreage lay south and west of the Illinois River 
and east of the slough known as McCormick slough. — 


3680 I was also over in Sections 22 and 23. I was not on 
the little portion over there in the southwest corner of 
Section 21 that lies east of the Illinois River yesterday. 
We got on Section 21 by going down to Peru and fol- 
lowing the road over the bridge and over east and west 
of the center line through Section 21. The road goes 

3682 through the entire section. Portions of it are elevated 
through the slough known as McCormick slough and por- 
tions of it is level. In addition to McCormick slough 
there is sort of a swale there. I should think the road 
is maybe a foot or so above the swale. 


I saw the corn stalks but did not make any computa- 
tion as to the number of acres. The corn stalks were 
3683 irregular, not in a regular shape. 


3684 I went down there under Mr. Chiperfield’s instructions 
to take these gentlemen down to show them this land. I 
did not make any tests to determine where the water 
3686 stood under the land, only observed the surface of it. I 
3687 was about where you have your finger when I made 
the observation. I did not select any particular point 
3688 for the purpose of making the observation. There 
would be very little difference between the level of the 
water in the Illinois River and in McCormick slough. 
3689 I observed the bank of the Illinois River. It is not of 
3690 a uniform height. The bank along the river here on 
the north is possibly four feet higher than it is on the east 
part of Section 21. 
3691 I have made a contour map of that particular piece. 
3692 I did not see any water on the land. Did not make any 
3693 examination of the land for the purpose of ascertaining 


821 


3694 where the water table was; there probably is one. The 

3695 water table is a little higher at the slough. I was out 

3696-3711 on the land. The condition of the slough there 
was about as it was in Section 21. 


3/12 Iwas over on 23. My judgment is that the land is three 
or four feet right in there above the level of the water 

3713 in the river. Where you are pointing is one of the low 
points in there. J never made any survey in through 
there. 


After we went on the land we went east of the Illinois 
Central right of way. I was over to the bank of the Ver- 
million River. The level of the water in the Vermillion 
River was from nine to ten feet below the surface of the 

38715 soil. There was water in the slough along the east side 
of the Illinois Central. The water backs in from the 

3716 river, I suppose. I have been all over the land. I did 

3717 not go down to that particular spot yesterday. I saw 
it there yesterday and at different times before yester- 
day. 


Re-direct Examination by Mr. Chiperfield. 


If I responded in answer to an inquiry of counsel that 
the water level in Section 23 stood with reference to the 
Illinois River four or five feet above the river, I mis- 
understood the question. I don’t know anything about 
the water level in this land. I don’t mean to say that 
it stood four or five feet above the water in the river. 

3718 I took samples of the soil from forty acres of this 
land. I have those samples and will bring them to court 
and produce them for the inspection of the jury. 


822 


3719 J. G. Mosier, a witness for the defendant, being sworn, 
testified as follows: 


Direct Examniation by Mr. Chiperfield. 


My name is J. G. Mosier. I live at Urbana, Illinois. 
I am a teacher in the College of Agriculture and soil in- 
vestigator in the agricultural experiment station of the 
University of Illinois. My chair of instruction in the 
University of Illinois is soil physies and also in the in- 
vestigation in the experiment station, all along the same 
line. I have had direct charge of the detail soil survey 
as made by the state. I have made a soil survey of La 
Salle County and have a map of the survey and have pro- 

3720 duced it for identification. 


Which said map was marked Exhibit 280. 


That map truly, accurately and correctly represents 
the different types of soil found in La Salle County. That 
is the entire map of four sheets. 


Four sheets were thereupon all marked for identifica- 
tion as Exhibit 280. , 


I have been on the land opposite Peru and La Salle 
within the last few hours. The type of soil found in the 
sections mentioned is brown silt loam, bottom land. That 
is the part included between the bluffs. A brown silt 

3721 loam is a soil that is made up largely of particles of 
intermediate sizes. We have soils made up of four dif- 
ferent constituents in regard to size of the particles. 
The finest is clay, the next size is what we call silt and 
the next is sand, and then the fourth gravel. Silt loam 
is made up largely of the constituent soil. Then in ad- 
dition to those there is a varying amount of organic mat- 
ter mixed in with this constituent. Understand me now, 
it is not made up entirely, but largely, of this constit- 


Se ie 


823 


uent. In addition to that we may have either the clay 
or we may have some clay and some sand with it. 


The land I saw yesterday I would denominate first 

bottom land. By first bottom land I mean land that over- 

3722 flows, is subject to overflow. The soil is what we eall 
a porous soil, a soil that will drain very well. 


This soil would be a fairly early soil and yet not as 
quick as would be the case with a larger amount of sand 
in it. 

In the agricultural department we have made a study 
of the raising of crops. I have had a practical farming 
experience in addition. I was raised on a farm and have 
a farm that I have managed for the last fourteen years. 


3/23 As to the crops which could be grown on this land 
from the 20th of June to the lst day of November I 
would say corn, probably one of the principal crops that 
would be grown on there; soy beans is another crop re- 
quiring a slightly shorter season, possibly, than corn; 
millet and sorghum would he another crop that could be 
grown there. By sorghum I mean cane. 


Millet is planted in the spring, say from the middle to 
the last of June. Millet that was grown here possibly 
would not need to mature, but if it was simply sown for 
hay it would not need to mature before it was cut. I 
don’t think I could exactly state the time it would take, 
but I am positive that it would have time to mature from 

3724 the first of July until September, until the frost came. 


For hay it is cut before the seed begins to harden, 
when it is hardly in the milk yet. 


Cane is used in connection with farming; not for sor- 
ghum or sugar; it is a forage crop. By forage crop I 
mean a crop that you use in the same way as hay. An 
ordinary yield of millet is two and a half to three tons 
on good strong land, 


824 


When I speak of corn that could be raised on this land 
I mean rather an early maturing variety. There are such 
' varieties maturing from ninety to one hundred days. 
0/25 I have never had much experience in the use of en- 
silage or silos. I could not say anything as to the root 
crops which could be raised on this land. 

Soy beans can be planted about the same time that the 
corn is planted. We usually plant it just after corn 
planting time. To mature it would take from 90 to 100 
or 110 days. 

Soy beans are used for hay, and the seed crop is ob- 
tained from them. The ordinary yield from an acre or soy 
beans is fifteen to twenty bushels per acre, and in addi- 
tion to that there would be about from a ton and a half 

3726 to two and a half tons per acre for hay. 

Q. I will ask you to state, professor, if you have an 
opinion as to the present value of land situated as yout 
saw the land in controversy situated yesterday, for the 
purpose of raising the crops which you have mentioned? 
A. Under the conditions that the land is in? 


Q. Yes, sir. 

Mr. O’Conor: We object, your Honor, unless some 
time is fixed. 

Mr. CurrPerFIELD: I am fixing the present time. 

Mr. O’Conor: We object to it. 

The Court: I will let him answer. 


Mr. Curperrretp: The first question, professor, is, 
have you an opinion on that subject? 

A. JI have merely an opinion. 

Q. That is what I am inquiring, if you have an opin- 
ion as to the value of the lands so situated, for the pur- 
pose of raising the crops you have spoken of. That can 
be answer yes or no first. A. Yes. 





~ 


. 
7 
4 
fa 
t 


§ 7a 








825 


Q. What is that opinion? A. Taking the land as it 
3727 now, subject to overflow as this is, I should say from 
$125 to $150 an acre. 
Mr. Cureerrietp: In connection with Professor Mo- 
sier’s testimony I want to introduce in evidence the Hix- 
hibit 280, being the soil survey map. 


826 


Which exhibit was thereupon admitted in evidence, and 
is in words and figures following, to-wit: 


3728-30 Soil survey map. 


c 
v 


LAND PRAIRIE SOILS 


Brown silt loam 


OB ie (ie) ( ) 


=a) Brown silt loam on til! 
Black clay loam 
Black silt loam 


Brown sandy loam 


v 


UPLAND TIMBER SOILS 


tema) Y Cllow-gray stit loam 


Yellow silt loam 


Rock outcrop 


Se ie 


LEGE 
TE 
Brown silt loam 
bse 
S 
i 


ND 
RRACE SOILS 


Brown silt loam 
on gravel 


Brown silt loam 
on rock 


Brown silt loam 
Sy over grave! 


Yellow - gray silt loam 
z on gravel 





Yellow-gray silt loam 
over gravel 





Brown sandy loam 


Brown sandy loam 
on gravel 


Brown sandy joan 
on rock 


seg) Brown sandy loam 
Over gravel 


zMiles 


SOIL 











Pe | 


R22 


SURVEY MAP OF LASALLE COUNT 


oS a a 
‘Rutland | | 
| 17 16 f 
7 7 
& ie spew. ul 
! 
° + 2! 
* 
+ ~4 Sat) th 
5 a 
29 a 28 
jee 
ei oes spore te cj 
32 33 
é 


20 


29 


2 ' 
} 
+~ a 
} j 
il i i2 
- 7 
+ . = - 
14 13 





si 


PC Lee IN LAT 


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2 
m 
ag 
hs 
2 
ra 
« 


Y 


T 


is 14 
Ranson 
as 2 

22 e3 
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27 . 
& a 

34 45 


| ioe “sand 


SWAMP AND BOTTOM 
svty LAND SOILS 


EB Deep brown silt ‘oarr 


, 


Deep peat 


Medium peat on cla 


VAL SOILS 


UNIVERSITY OF ILLINOIS AGRICULTURAL EXPERIMENT STATION 


An. 5 £ 
4 . 
1864) Ye, Ows-gray sant an 
ne : 


SER | 
tone | Mixed loam ‘emali streams 
29! i = 






att Re Se Re ee SS en ee ee 
a COUNTY 


eit 


ASAT Ns 


loo 


Pkitns 


Ls 


i ai ¢ wee pon 


x Bi i 


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? 


if 


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: 


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R44 E& 


DEKALB COUNTS 







—————— 


Ex h. ? RO 


: - a 
a : ononank a oe 


ALN oO TIVUNYY 






4 


RAT OUCY ACL IN Lek? 
z& 


UPLAND PRAIRIE SOILS 


[2s] 
lrr26| Brown silt foam 





P| Brown sandy loam 


UPLAND TIMBER SOILS 


Yellow-gray silt loam 


4 Yellow siit loam 


Rock outcrop 


Seale 
o % %2 i 
—_— oe 


SOIL SURVEY MAP OF LASALLE COUNTY 


e Miles 


LEGEND 
TERRACE SOILS 


= 
= 
= 
# 
= 


Brown silt loam 
Brown silt loam on gravel 
Brown silt loam on rock 

‘ 
Brown silt loam over gravel 
Yellow -gray silt loam on gravel 


Yellow-gray silt ioem over grave! 


Bw} 


1636 





Brown sandy loam 


Brown sandy loam on gravel 


Brown sandy loam on ‘ock 


reise 


Brown sendy loam over grave 


C= 
| 
i 


cnr] 
— Yeliow-gray sandy oam 


a Dune sand 
BR 
*% Gravelly loam 


SWAMP AND BOTTOM 
gecy LAND SOILS 


8 Deep brown «11! loam 





Mee Mixed loam\smali streams 





+01; Deep peat 


Medium peat on clay 


RESIDUAL SOILS 


a Brown sandy foam on rock 


083 Residua! sand 


Morainal Ridge Types 


UNIVERSITY OF ILLINOIS AGRICULTURAL EXPERIMENT STATION 


4 ; 
n Jt pnnearenbdyidannn oe bee mente WR et te Ree 


: 
Gin 


Apirionn tty 
is 


‘ee 
sided sop ie: 


—g 


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BN me 


i 


-s 


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ms 9 


nae 


; 


Se 
i 


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ext 


oe 


Xai 


+ 


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iy ap ne OF NE 


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t- 





827 


3731 Cross-Examination by Mr. O’Conor. 


I did not make the map. The lght green color desig- 
nates the brown silt loam on the bottom land. That 
takes in practically all the valley that hes between the 
bluffs that 1s overflowed. The map was made by the party 

3732 out in the field doing the work during the soil survey, 
working here in this county. There were four men in 
the party. In giving the valuations which I have today, 
I have not taken into consideration the value of the coal 
lying under the surface. I confined my testimony purely 
to the surface of the land. My testimony took in all of 

3733 Section 21. I don’t know how many acres. I cannot 
give the acreage, but from the map I have an idea of 
how much in the section is involved. 

I have been through Section 23 south of La Salle; 
through there two years ago. From what I have seen of 
the map I have an idea where the land of the plaintiff 
is located over there. I was never there for the purpose 
of making an examination of the land. That is the land 

3734 in Sections 22 and 23. I do not know how much of the 
land overflows or how long the water stays on it or how 
much has been raised on it during the last ten years, ex- 
cept I might say that as this is mapped bottom land on 
our soil survey as brown silt loam, I know that the land 
overflows, but just how much it overflows in a certain 
stage of the river, I don’t know. It overflows at a cer- 
tain time of the year and has been doing that for cen- 
turies. 

3735 It would not be possible for me to tell the land over- 
flowed simply by an examination of the soil. I would 
first have to know where it came from. I don’t think 
any man could determine that it came from the bottoms. 

3736 There is nothing in bottom lands that you do not find in 
uplands. 


——s ——s 


a ee i at cee te A ett 


<> —s 2 


828 


The bottom land is rich in the qualities of productivity 
By the use of the term ‘‘under conditions existing’’ I 
mean subject to overflow, I mean danger of overflow at 
any time, the occasional overflow that occurs. If the 
land was not subject to overflow it would probable be 
worth double. 

3737 I cannot answer as to how many acres in Section 21 
could be used for the purposes I say. It is pretty hard to 
answer the question definitely, but in a general way, just 
from my observation yesterday afternoon, I should say 
nearly all of that could be used in this way. The condi- 
tion of the land where the weeds were growing was it 
was simply full of weeds. The condition of the soil was 
just as good as it was any other place. 

I don’t know how long the water stays up on the land 
in the spring or summer. That would influence my an- 
swer if the water did not get off there in time to put a 
crop in; it certainly would; but judging from the topog- 

3738 raphy of the land I passed over, there didn’t seem to 
be very much difference in the height of the land that 
was cropped and that that was not. It seemed to be 
about level. The corn was pretty generally in one large 
area there. Of course, there were one or two places 
where there was no corn. The corn looked practically 
uniform to me. 

I saw the stalks there. Made no examination of the 
corn itself. I did not examine any of Section 21 east of 
the Illinois River; I was not there. I don’t know whether 
that is practically the same as this part of Section 21 

3739 lying south and west of the river, except from the soil 
survey. All my knowledge as to the land in Sections 
22, 23 and 24 is based on the survey. In my estimate of 
the values I had reference to the bottom land that is 
mapped, brown silt loam on the soil survey. 

I have had practical experience in the raising of the 


829 


different things I have mentioned. I testified in a case 
like this before. I don’t remember the year. It was in 

3740 Fulton County four or five years ago, I don’t remember 
exactly. I don’t know how much land was involved in 
that case. 

Another case I was in was at Peoria some three or 
four years ago. In that case there were 1,800 or 2,000 
acres, I couldn’t say positively. 

3741 It is not my idea that all the land should be planted 
in soy beans or millet. It would all depend on the kind 
of a farm I was running. If I was running a dairy farm 
or raising hogs then the amount of soy beans I would 
put in would be different from what it would be if I 
was running a grain farm. 

3742 Jam sure soy beans will grow on that land. Of course 
if it flooded they would not grow. If I planted soy beans 

3743 I would use part of it for hay as a forage crop, other- 
wise I would sell them or feed them to the cattle or 

3744 hogs, or thresh them for seed and then sell the seed to 
anybody that wanted to buy them. There is getting to 
be quite a demand for soy bean seed, and I should dispose 
of those just as I could best. In the last four or five 
years there has been an increasing demand for soy bean 
seeds in the state. 

3745 If I was raising millet I would put in enough to sup- 
ply me with hay and possibly some for sale. It would 
depend upon the amount of stock I had. The balance I 
would put in some other crop, corn for one thing. How 
much I would put in corn is the old question again. If 

3746 I had 200 head of cattle then I would want considera- 
ble of it to soy beans and millet and the balance in corn, 
and if I didn’t have any cattle then I would put it largely 
in corn or some crop of that kind. _ 

3747 I don’t know from the analyses we have made about 
the quality of the land for raising corn. I have no defi- 


830 


3748 nite knowledge as to the quantity of corn it would raise, 
or as to what it has actually produced, or as to the con- 
ditions that existed in this specific locality for the last 
ten or fifteen years. 


3749 Re-direct Examination by Mr. Chiperfield. 


I do not want the jury to understand that I would 
plant all the land to any one of these crops in any one 
year. If I were conducting a farm here I would divide 
the farm proportionate to the different crops that would 
best serve my purpose for that kind of crop. Soy beans 

3750 are actively upon the market and bring from $1.50 to 
$2.50 a bushel. 


3751 Lronarp Hranaver, a witness for defendant, being 
sworn, testified as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Leonard Hegnauer. I reside at Urbana, 
Illinois. JI am professor of crop production in the Uni- 
versity of Illinois. 

3752 The work I do is two-fold. In the first place I am re- 
sponsible for the instruction in the university that is 
given on crops, and in the second place, I have charge 
of all the experimental work that is done in crop pro- 
duction. Now that means about this, in crop production 
we investigate different crops that are grown in this 
state, the soils to which they are adapted and the cli- 
matic conditions under which they grow. So in short 
we take that work today, that is, we look after the crop 
interests of the state. I have been connected with the 

3753 University of Illinois since 1903, excepting June, 1910, 
when I went with the State College in Kastern Wash- 
ington. I was there until September 1, 1911, when I was 


831 


asked to come back and occupy the position which I now 
have. 

In connection with the university we have an experi- 
mental farm at Urbana which is a very large farm, and 
then we have a field at DeKalb, Illinois, and one at Fair- 
field, Illinois. I have charge of those. I have men help- 
ing me, of course. We issue bulletins concerning our ob- 
servations and experiments from time to time. 

I have seen the land in controversy in this case, and 
was on the land yesterday. I believe that there could 

3754 be raised on this land between the 20th of June and the 
time of killing frost, Indian corn. I believe Indian corn 
could be cultivated successfully. I would take the va- 
riety that would mature first and sow it and use it as 

3755 mature corn. Then we could use the corn for silos as 
ensilage. We cold cut the corn and put it into shock 
and use it as fodder. Dry corn. 

Another crop that would grow on that land is sweet 
corn. Of course, sweet corn can be used for canning 
purposes and could be used for feed. Sweet corn could 
also be used in silos as ensilage. 

Then we could grow on that land millet. Millet would 
be used entirely as hay for feed, or we might produce 
the seed and sell the seed off of it. 

Then we could grow soy beans, which is a good crop 
to grow in any kind of land where the crop will grow 
for the purpose of soil improvement and for the pur- 
pose of feed. The soy bean crop can be harvested as 
hay and fed as hay, or we can wait until the seed ma- 
tures and thresh the seed and sell the seed and feed 
the hay. 

Another crop that could be grown there is the cow 
pea crop. Cow peas can be used for fertilizer purposes 
and for hay purposes. If we had a very early variety 
of cow peas we might make seed there, but we could use 
it as feed. ) 


832 


3756 Another crop that would grow on there would be the 
potato crop. The potato crop is handled simply for the 
tubers. 

Another crop is the sorghum crop simply for feeding 
purposes. That is what most people would eall cane; 
we generally speak of it as sorghum to distinguish be- 
tween that and the real sugar cane which is grown in 
the south. The sorghum crop could be used in two ways; 
cut it down and dry it and cure it up like you would any 
other hay and use it as hay, or we might use it as a soil- 
ing crop. By soiling crop I mean we let the crop grow 
up and cut it down, say this morning for today’s feeding, 
feed it green. It is used in place of pasture crops. Cut- 
ting each day what is required for that day’s feeding 
and then the next day cutting another portion and feed- 
ing it, and so on. And in the case of sorghum we can 
cut the piece over, beginning at one end and cut it over 
and then start at the beginning again and cut it once 
more. That is the way that is generally handled. 

3757 Now, another crop we could produce is the rape crop. 
It is a crop that is similar to the cabbage, produces no 
head whatever, but it produces leaves similar to the 
cabbage and is used as a green food crop. They some- 
times feed it to sheep, and very frequently it is pastured 
with calves and young stock of some sort. 

Then there are two other crops that I am not so pos- 
itive about, but I believe, have every reason to believe, 
would grow. The reason I don’t know that they would 
is that I haven’t seen them in this section growing. They 
are the kafir corn and milo maize. 

The Indian corn I have in mind is what the farmer 
ordinarily calls corn. It is the dented variety and I 
would limit to the ninety day corn. 


3758 In regard to the use of corn for ensilage, the usage 
varies a little bit. All people do not exactly agree on the 


833 


stage of maturity as to when it should be cut. Most of 
them want it in the glazed condition, that is, it is past the 
roasting ear stage and is beginning to get hard. The 
leaves are still green, the husks are probably turning 
shghtly brown. Now that is one stage in which they cut 
it. Another stage is just a little bit farther on, when the 
ears have become quite brown and the lower leaves are 
beginning to dry, but it is not ripe; we don’t let it get 
ripe for that purpose. Now between those we find them 
cutting it and using it. 

3759 The ensilage is stored in what we eall silos, kind of 
air tight structure. Just cut up and put in there tight 
so the air cannot get at it and cause decay. 

I would judge an average yield of soy beans under © 
the conditions such as these, I would say would be from 
fifteen to twenty bushels of seed to the acre. The or- 

3760 dinary market price for soy beans would be from $1.50 
to $2 per bushel. 

The average yield of millet I should say would be 
from three to five tons an acre. And the average yield 
if milo maize and kafir corn would be four or five tons. 

3761 The average yield of cow peas would be about three 
and a half to four tons. Soy beans I would put a little 
lower than cow peas, say about two tons. 

It is my judgment that all the crops which I have 
mentioned would mature between the 20th of June and 
the 1st of November. | 


3762 Cross-Examination by Mr. Butters. 


I have farmed myself. I was on the farm until I was 
twenty-three years of age. I am now forty. 

The very earliest varieties of Indian corn would ma- 
ture just about like the soy beans. We plant the Indian 
corn first and just as soon as we get through with that 
we plant the beans. 


834 


3763 We have ninety day corn, and our earliest soy beans 
would take just about ninety days. I say for the earliest 
varieties about ninety days. I should not make a great 
deal of difference as to which is adapted to damp soil, 
corn or soy beans. 

3764 I don’t know how many acres there are in Section 21. 
I should think in the neighborhood of 400. I don’t know 
how many silos it would take for ensilage on that amount 
of ground, or how many tons a silo holds. J will say we 

3765 have a silo that will hold 250 tons, and the ensilage 
runs about ten to twelve tons to the acre. I cannot give 
you the dimensions of the silo holding 250 tons; might 

3766 be about thirty feet high. 

If the corn was not in the glazed condition it would 
make ensilage all right, I think, but not quite as good. I 
don’t know it would be unsafe to put it in a silo if it had 

3767 not reached that stage of maturity. I don’t know that 
it is futile to put it in at that time. 

3768 My answers are not all based on the fact in this case 
that the land can be tilled from and after the 20th of 
June continuously to the first day of November. I sim- 
ply based my answers on this ground, that I have in- 
cluded crops there which would not necessarily require 
all of the time that is involved between those two points. 
For example, we have there at least 110 days, and these 
crops would mature some of them in ninety days, so that 
we would have there a leeway of twenty days. If you 
get on the land the first of July it would make good en- 
silage corn and would be in the glazed condition before 

3769 November. If it would not mature the corn so it would 
arrive at the glazed period it would not be good for soy 
beans except as a green food, but I would not attempt to 
say that we could mature the seed. 

You cannot feed a crop unless you have got animals 
to feed it to. I do not know what the ordinary trade 


835 


silo costs. JI never constructed one myself. I am not 

3770 sure as to whether a cement costs about $1,000. 

I would not say that I have named all the crops to 
Mr. Chiperfield that could be raised upon this land with 
any degree of profit. J presume garden truck would 

3771 grow, but I would not answer because I do not know; I 
never had any experience in that line. 

When I was on the land yesterday I noticed the part 
that had been in corn and the part that was not in corn. 
I did not distinguish any difference between them as to 
the character or fertility of the soil. 

3772 Iwas not over on that part of the land you are show- 
ing me. I saw some corn that was immature. I did not 
see any difference in the soil there. The question would 

3773 be whether the water stays off long enough. Of course 
if the water comes in while the crop is out there it won’t 

3774 grow. I would not care to estimate how much land I 
saw that did not have a crop on it in Section 21. If you 
could not plant until the first day of July it would not 

3775 have as great a value for corn, but it would have a 
value. If in addition to that the condition of the surface 
became so wet that it was impossible to get upon it to 

3776 harvest the corn, it would have a value as ensilage or 
fodder. 

We have grown cow peas in southern Illinois and on 
our farm at Urbana and in some portions in the western 
part of the state. I have not done any experimenting in 
this vicinity practically within a radius of fifty miles. 

3777 I do not know that this climate is not conducive to the 
profitable production of cow peas. I know what thé soil 
is. I don’t pretend to say anything about the analysis. 

3778 In order to raise cow peas it requires a soil having or- 
ganic matter in it and soils that have mineral substances 
in them. This soil I suppose is classified as brown silt 
loam. 


836 


3779 I don’t know from actual experience what the interval 
is between the spring and fall overflows on this land. 
If you could get on the land in May it was fit to till 
during the entire summer and turn stock in upon it in the 
winter, it would produce all the crops that I have testified 
to and its value, I think, would be considerably more. 


3780 Grorce DEGROooT, a witness for defendant, being sworn, 
testified as follows: 


Direct Examination by Mr. Chiperfield. 


My name is George DeGroot. I live at Peru. I have 
a fish market and have known the Illinois River about 
twenty-five years. ‘T'wenty-five years ago the river was 
cleaner than it has been a year or two before the drain- 
age came in. For a year or two:before that time it was 
3781 pretty bad. There was lots of moss, dead water, had 
no chance to get out; not so very much of a current; 
would take a long time for the water to flow away. I 
could not tell how fast the current was at that time. 
After the Sanitary District was opened there was a 
change in the current. I don’t know exactly what the 
current is now because the current is changeable. I 
would say about three miles an hour. 
3782 I know the land in this suit across from Peru, the 
land of the plaintiff. I know McCormick slough. I know 
3783 the creek known as Cedar Creek. Cedar Creek comes 
out of the country down from the hills. It runs a long 
ways back from this land, thirty or forty miles. When 
Cedar Creek is in flow I have seen it all the way from 
four to six feet of water coming down. It empties down 
between what they call the Huse and Loomis and McCor- 
mick slough a half mile below the bridge. If there is a 
3784 real heavy rain it flows into the McCormick slough. 
This creek has formed a great big bar. That bar runs 


837 


clear across the slough; that used to be all one slough. 
The bar runs across where the creek comes in. The 
water from Cedar Creek empties into the slough. There 
are a lot of willow trees growing on this bar and they 
throw the water in every direction. There is a big em- 
bankment that makes the bottom land higher than it 
really is. I should judge McCormick slough, figuring in 
the narrow ends of it, is about a mile long. It is twenty- 
five feet deep in places in high water. When the slough 
is filled with high water the land on the east side of the 

3785-86 slough is the highest. Some places it is ten feet 
higher. The effect which the slough has upon the seep- 
ing out into the land is different. It cuts and runs through 
here and this slough runs back upon it, little low places. 
There is a little small creek that runs through and backs 
up on this ground. In fact, there is a pond, and this 
water is shut off by this big bar down below which holds 

3787 this water two or three feet higher than this other 
slough that is connected with the river. This water can- 
not get out any way at all. It is all grown up with wil- 
lows and banked up there, and it all stands there about 
a foot higher than the main channel is. There have been — 
pues of driftwood and refuse drifted in there to build up 
the bar. The water in this slough has no other means 
of escape except seeping through the land. That is the 
only way it could get out and it seems to me it don’t 
even seep out. It stays right there. 

When the draws which I spoke of become filled with 
water it backs up on this. The bar is on Ernat’s land. 
In order to get ride of the flow a man named McCaleb, 
who had some land connected to McCormick’s slough on 
the south side, went down there and cut a great big strip 
of willows, about a half a block wide and a block and a 
half long, and then Ernat stopped him. The company 
hasn’t done anything towards draining this slough, but 


838 


the renters have. They went down there and tried to 
dig through with spades, through that driftwood, and 
gave it up as a bad job. 

When the river goes down in the spring the bar holds 
the water up in the slough. The slough is about a mile 
long and it is several blocks wide in places. Of course, 
it runs uneven; some places it isn’t over fifty feet up in 
the end. The level of this slough is two feet higher than 
it is when the river is low. There is no connection what- 
ever between the river and the slough. 


3789 Cross-Examination by Mr. O’Conor. 


I last saw McCormick slough yesterday. Also saw the 
Illinois River vesterday. A man by the name of Powers 
was not with me. I am not acquainted with Mr. Powers 

3790-92 of the Sanitary District. JI did not make any ob- 
servations yesterday; just looked at it the same as I 
would every day; that is my business on the river. The 

3793 water yesterday was moving in the slough. 'TChe wind 
was ruffling the water. The water in the slough was 
“standing. It was about three inches above the level of 
the water in the Illinois River, three to five inches. Of 
course it has been falling right along. I know because I 
pulled through the place that holds the water in the 
slough. I told you it was from three to five inches lower. 
Know it was four or five inches lower by riding this 
slough connected with the upper slough and by pulling 

3795 through. I did not make any measurements, that is 
just from my judgment. The river does not affect it by 
seepage back over the land; McCormick slough does. It 

3796 only does to the low ground. I would judge 70 to 75 
per cent. of the ground is low and the balance of the low 
eround would be affected by McCormick slough. None 
of the low ground is affected by the river at all. It can- 
not get out because there is a big high bank all the way 


839 


around the bend, I would judge about ten feet high. Not 
just all the way but clear up to the land. 

3797 ‘There isn’t any water from the Illinois River comes in 
on this land, none at all. I have never thought that there 
was any seepage held back in the land, or water held back 
in the land from the Illinois River on account of the clay 
ground. There is a sub-soil there. There is a big high 
bank there right across from the mouth of the river. I 
don’t know whether there is a clay sub-soil underlaying 
this ground. The clay I spoke of is up on the bank, and 
down. 

I have been in a position to observe the river for 
twenty years or longer. I am pretty intimate with it. 

3798 I never done any work for the Sanitary District of 
Chicago. I don’t know that my father has. I don’t pay 
any attention to my father’s business. I don’t know 
whether he is doing any work for the Sanitary District 
or not, except he has been keeping tab on a little water, 
but that hasn’t got anything to do with me. Father has 

3799 been taking gauges the same as anybody else does that 
has got any interest. In fact I do, the first thing in the 
morning I run over to see whether the water has raised 
or lowered. I don’t know what connection my father has 
with the Sanitary District. 

I remember when the Sanitary District opened, but 
not exactly. It was quite a few years ago. We did not 

3800 pay any attention to it, just figured it was running on 
and off. I knew it was being run into the river, as I 
read the papers and looked things over. We kind of fig- 
ured when they were turning it in. I didn’t think it came 
from there at that time. At times I don’t think any of it 

3801 comes from there. I have figured it, in my opinion, be- 
cause the water was down so low we did not think there 
was any coming in at all. Saw it in the Chicago papers 
about its being turned in. I saw a difference in the 


840 


color of the water; it used to be roily and dirty. The 

3802 water was soggy and heavy and muddy, and it seems 
when the drainage was turned in we had nice clear water. 
I didn’t pay any attention to it. I suppose it took sev- 
eral days to get where we lived. I haven’t kept any 
track as to the year when I did notice it. When I no- 

3803 ticed it it was at Peru. I don’t know how much water 
there was at Peru at that time. It is a good many years 
back and I never knew I would be a witness in this case, 
because if I ever dreamed anything like that I would 
be here to hand it to you good and plenty. We have to 
take human life as we find it, you know, and I am just 
giving you my best judgment, and that is the best you 
can expect. 

3804 When I first noticed the water it was eight feet in 
some places and some places forty feet, and we have 
places that fifteen years ago it was twelve feet of water 
and now itis dry land. I couldn’t tell how deep the water 
was when I first noticed the water from Lake Michigan. 

3805 I think I saw a change in the color of the water since, 
the last time this morning. I think it was lake water 
the same as it looked up at Chicago. I was up in Chi- 
cago a week ago and it looked the same, and that is what 
you go by. I was standing on the middle of the Illinois 
River bridge at Ottawa. The river is 1,000 feet wide and 
the current is an ordinary current. I guess we had a 

3806 four mile current. I couldn’t tell how deep the water 
was. | 

It was not a general condition. The Fox River has 
got a different color passing through. I could not tell 
from the Illinois River that the whole surface was af- 
fected by the water from Lake Michigan. I don’t know 
anything about the water of the Kankakee and Des- 
plaines Rivers. | 

3807 Prior to the turning in of the Sanitary District water, 


841 


the stream at Peru had ordinarily no current at low 
3808 water. It was dead water, that is what we call it, and 
there was a growth in the river along there. Since the 
Sanitary District water is turned in the speed of the 
water at Peru is about three miles an hour at low water. 
That is my best judgment. I cannot see that it 1s Lake 
Michigan water by looking into it. It is pretty fair. 
3809 I don’t remember how deep the stream at Peru was 
before 1900. No judgment on it. I was there a great 
deal but I paid no attention to it. I haven’t any opinion 
about that. I would run down and look at the gauge 
and paid no attention to it after that only how the water 
was the day before, and how it was different. I would 
judge the water is nearly a foot higher in real low water. 
3810 There is about thirty-five or forty feet of water at Peru. 
The river at that time was about 110 feet wide. The 
banks are about the same as they always are. The river 
was not filled across. I have observed the condition in 
3811 Peru for twenty years, probably back farther. I know 
them pretty well. 


3812 W. J. Frazer, called as a witness by the defendant, tes- 
tified as follows: 


Direct Exammation by Mr. Chiperfield. 


My name is W. J. Frazier. I live at Champaign, Tli- 
nois. I am professor of dairy husbandry in the Uni- 
versity of Illinois; have been since 1893. I was born 
and raised on a farm. Worked on a farm until I was 

3813 twenty-three and owned a farm for eight years. I was 
on the land in controversy in this suit yesterday. Pro- 
fessor Hegnauer of the university was with me. In my 
judgment corn, a rather early variety, cow peas, soy 
beans and millet would be good crops to raise on the 
land in controversy. They could be raised and harvested 


842 


between the 20th of June and the first day of November. 
3814 I have had experience with ensilage and silos. In 
silos the corn should be put when it is about three-fourths 
dented and one-fourth still in the milk or dull; depend- 
ing somewhat on the variety of corn; the corn should 
be from 105 to 125 days old, from the time of planting 
3815 until it is put in the silo. An early variety of corn ma- 
tures in considerably less time. I would say fifteen or 
twenty days earlier, anyway. I have planted corn this 
year, on my own farm, on the 3d of July. It got ripe 
enough for the silo. I think that probably ninety days 
would be a sufficient length of time in which to raise a 
3816 crop of soy beans. I think they will yield from fifteen 
to twenty bushels to an acre. Prices vary. I should 
say about $1.50 a bushel is about the value. The hay 
from soy beans, if cut at the proper time, retains the 
leaves and has a good deal of food value. It ought to 
run on good soil a ton and a half to an acre. It should 
be as nutritious as clover. Soy beans have about the 
same composition as oil meal. I would rather feed mil- 
let than timothy hay, and that is what the dairymen in 
the dairy region of northern Illinois feed. It has more 
3817 protein in it than timothy hay. I think millet would 
be from 10 to 25 per cent. better than timothy hay in 
food values per ton. We feed the hay from cow peas. 
It is about the same as alfalfa and is considerably more 
valuable than clover and richer in protein than clover. 
Our plan is to plant corn for silos the same as for an 
3818 ordinary crop. Probably the entire crop will be used 
in silos. A very few stubs remain occasionally, prac- 
3819 tically none. I am familiar with a crop known as man- 
gel-wertzel, and it is a crop that could be raised on the 
land in question. They are used for feeding purposes. 
They should be stored where it is cool and rather damp. 
Cattle of any kind and hogs will eat them. I think it 


843 


takes about ninety to one hundred days to mature. The 

3820 average yield is twelve to twenty, sometimes twenty- 
five tons per acre. In England they raise enormous 
crops. 


Cross-Examination by Mr. O’Conor. 


I think that this land is pretty valuable land. I be- 
heve you could raise rape on it. The silos at the univer- 
sity vary from ten feet in diameter to thirty feet. Ca- 
pacity from 25 to 330 tons. Some are made of wood 

3821 and some of cement. The cost varies, depending on the 
size. <A silo of average size will cost about $2 a ton 
capacity. | 

3822 I looked at this land with a view of using it for a dairy- 
ing proposition and with a view to raising crops for the 
purpose of feeding cattle, cows. I think probably a 300- 
ton silo would cost $600 and the same silo in cement would 

3823 probably cost $800. An acre of land where corn would 
run from seventy-five to eighty bushels an acre would 
make about twelve to fourteen tons cut at the proper stage 
for silo. An ordinary silo would hold the crop from 

3824 fifteen to twelve acres of land. I don’t think a man 
would put a crop from 150 acres into a silo. He would 
probably feed it in some other way besides the silo. I 
cannot conceive of a man using 150 acres, all for ensi- 
lage. It is true it would take ten silos to handle a crop 
from 150 acres and twenty silos for 300 acres. A man 

3825 ought to have forty tons of feed in silos for 200 days, 

3826 counting one-tenth for waste. I think feeding five tons 
to an animal for a season would feed about thirty-three 
head from 165 tons of ensilage, assuming that to be the 

3827 crop from fifteen acres. I don’t know what that land 
has ever produced, except what I saw on it yesterday. 

3828 I don’t know when the water comes on that land in the 
fall nor when it comes on it in the spring. I noticed the 
corn in the cornstalks; on the land yesterday I saw the 


844 


corn which came off of there; some of it was in a wagon 
3829 and some of it was still standing on the stalks. They 
were in there with wagons yesterday when I was there. 
It was on Section 21. There was corn in it. J examined 
the corn that was in the wagon. My associate with me 
3830 also examined the corn. It was not the best corn be- 
cause that corn was the youngest in the field they were 
husking; the last planted. It was rather immature; the 
stalks were about one-half or one-third ag high as on the 
majority of that land. I saw there ears that were found 
standing on the stalks, that had been missed. We both 
3831 examined that. We drove along the C., B. & Q. Railroad 
on the other land. We passed by that land and saw the 
corn there, but did not go into the land. That is the land 
3832 that hes west of the Illinois Central and south and east 
of the river; other than to drive along by it.. We drove 
on the road or highway; not down across the land on the 
3833 bottoms at that point. I think I can form some judg- 
ment as to the kind of corn that was raised there, from 
looking at the stalks and examining them. We went over 
3834 a good part of Section 21. If I was going to run Sec- 
tion 21 as a dairying proposition I would put in about 
one-fourth or one-fifth of it into cow peas. The land is 
too large to run singly. It ought to be divided into sev- 
3839 eral farms; might put in about one-fifth of it into millet; 
about one-half of it into corn. You couldn’t run all of 
that land for the purpose of operating one dairy. No 
man can run a dairy of 120 cows and do it successfully. 
3836 They have got to divide it into several. If I were run- 
ning a dairy and using the land for that purpose, the 
silos would necessarily have to be built on the bluff, or 
high land, where it didn’t overflow. I expect you would 
have to get some land back from the bottoms on which 
3837 to build your silos. There seemed to be quite a lot of 
corn growing on the piece of land that lies west of the 


845 


Illinois Central and south of the river. I don’t know how 
3838 many acres were in it. On Section 21, divided properly, 
you would have two dairy farms, roughly speaking, each 
of 200 acres. I would have a silo on each place enough 
to hold the crop from fifty acres. It would be about 550 
3839 tons of ensilage. Would probably put about one-fifth of 
the land into millet and about 50 per cent., or half of it, 
into corn. Half of the corn would be used in the silo 
3841 and the other half in shock. You could feed to the 
3842 cattle during the whole season. Hach place would sup- 
3844 port about fifty or fifty-five cows. I would not put any 
mature corn into the silo. This is not too far north to 
raise soy beans. I don’t know whether they have tried to 
raise them and failed. J know they have raised them up 
3845 this way and succeeded. I have seen this land several 
times before yesterday. I have ridden past it. Never 
was on the land; have ridden through both on the Rock 
Island and Illinois Central and Burlington; I can’t just 
3846 say when. The corn growing on Section 21 was pretty 
largely in one field. There were some strips running 
through it where there was no corn. I have had some 
experience in raising corn. Our land at the university 
3847 is for experimental purposes and practical purposes 
also. The land in Section 21 is soft ground; land that 
drains itself easily; is of a highly porous substance; a 
good deal of clay in the ground. I think that corn would 
3848 penetrate the ground from three to five feet. If the corn 
roots struck water at three to five feet down, if it was held 
there continuously, I think you could raise a very excel- 
lent crop of corn. I am sure you could, because I have 
done it. I don’t say it is an ideal condition for raising 
corn, but you could get a good crop. I don’t see why it 
should make the corn soft or milky. 


- 846 


Re-direct Examination by Mr. Chiperfield. 


There is no reason why this land should all be main- 
tained as one farm. 


3849 Benzamin T'aytor, a witness called by the defendant, 
testified as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Benjamin Taylor. I live at South Barton- 

3850 ville. I am head gardener at the Peoria State Hospital. 
The garden and farm of the Peoria State Hospital is lo- 
cated in the bottoms, east of the hospital. I have been 
engaged in gardening river bottom lands for the last 
twelve years. For the last eight years in the service of 

the State of Illinois. The land is located in the Illinois 
River bottoms. It is eight feet above the low water stage 

of the river. The farm is about three-quarters of a mile 
from the river and the biggest part of it is overflow land. 
3851 The land does not all lie on the same level. Itis sloping. 
T have seen the land in controversy in this case, last Sun- 
day. JI have had a long experience, about twelve years, 

in the raising of market garden products. I was garden- 

ing before I went with the state institution at Barton- 
ville, on bottom lands. Assuming that you can get on 
the lands in controversy in this case between the 20th day 

of June and the Ist day of July and have until the 1st day 
3852 of November for the purpose of farming, you can raise 
cabbage, tomatoes, cucumbers, hubbard squash and sweet 
corn. You can raise a late crop of beets; cauliflowers, 
onions can be raised; parsley can be raised; millet can 

be raised; also endive; carrots would not make a crop; 
late crop; I mentioned sweet corn. Sweet corn takes 
from sixty to ninety days to mature; tomatoes mature in 
ninety days; cabbage about the same; squash about the 


847 


same; carrots from sixty to seventy days; cucumbers 
about sixty days; beets take sixty to ninety days; cauli- 

3853 flower the same; lettuce six to eight weeks; radishes the 
same; turnips about sixty days and endive about sixty 
days; millet takes from four to six weeks. I have had ex- 
perience in the raising of all of these crops and have had 
an opportunity to see and observe the profit which is 
derived from the raising of them, extending over an ex- 

3804 perience of twelve years. I have an opinion, based upon 
my knowledge of the condition of this land, and based 
upon the possibility of raising these crops and the re- 
turns which are made from them, as to the fair cash 
market value of this land at the present time, for market 
geardening. 


Cross-Examination by Mr. Butters. 


We have from twenty-five to seventy-five or eighty 
acres used for gardening purposes used at Bartonville, 
3855 and raise all of the things mentioned. We have from fifteen 
to twenty-five insane patients that I work there. I raise 
very little millet. We never plant it except as a very late 
crop; unless we can’t get on the ground to get anything 
else in there. If we can’t get on the ground until the 

Ist of August, then we will plant a crop of millet, because 

it is too late for anything else. It is fed to the cattle. 
We plant our sweet corn at different times. We plant, 

if possible, along about the Ist of May. Cabbage we set 
out, an early crop, along the early part of May. We set 
3856 out some in July; about the 10th of July we plant it, 
the second crop. We also wait until July before we plant — 
squash. We have from one to three acres. As far as I 

ean see the soil down here in Section 21 is just the same 

as we have down in Bartonville. I don’t pretend that that 
3857 is true chemically. I never heard there was a certain 
salt in the soil on the north side of the river that was 


848 


not in the soil on the south side of the river in the Illinois 
valley. I never heard that. I don’t know whether squash 
can be raised up here in this country or not. They can 
be raised where [ am. By looking at this land I should 

3859 judge you could raise most anything. JI would want to 
make full investigation into this land before I embarked 
in the raising of those things; raising of the articles I 
have mentioned requires lots of help. JI am sure that I 
could raise all of the crops that J have mentioned and get 

3860 them in by the 10th day of June. I know nothing about 
the conditions of this land as to when you can get on 
there in the spring. We can get on the highest of our 
ground in May. We have a kind of a basin there, low 
spot, where we can’t get on until June. We have no 
levees on this land. 


3861 JoHn SALTER, a witness called by the defendant, testi- 
fied as follows: 


Direct Examination by Mr. Chiperfield. 


My name is John Salter. I reside in the south part of 
Peoria County. I am a gardener; engaged for the last 
fifteen years; about a mile and a half west of the Mli- 

3862 nois River, or a mile and a quarter. J know of gardens 
in the bottom lands in that vicinty and have gardened 
the lands which were subject to overflow. I am farming 
overflow land. JI have seen the lands in controversy in 

3863 this suit. I think that, assuming you could get on this 

' land from the 20th of June and have until the 1st of No- 
vember, in each year, in which to cultivate and raise a 
crop, that you could raise almost every kind of a vege- 
table except potatoes. You couldn’t raise celery, I don’t 
suppose, but you could raise tomatoes, cabbage, endive, 
parsley, cauliflower and turnips could all be raised. I 
saw some corn that had been raised there this year and 


849 


have generally observed the corn which has been raised 

3864 this year on uplands; also that raised on bottom lands. 
The most of the corn that I have seen this year is soft. 
I have observed the profits that have been and can be 
derived from the market gardening business, and based 
upon my observations of this kind and my knowledge and 
experience in that business, I have an opinion as to the 
fair cash market value of this land at the present time. 
I should judge this land would be worth $75 to $100 an 
acre. It takes about three months to mature sweet corn. 

3865, About three months to mature tomatoes and cabbage 
and carrots; nine weeks matures cucumbers; beets can be 
raised in two months; turnips in about five or six weeks; 
it takes about nine weeks to get a good ordinary endive 

3866 for the market, I have seen millet planted in the last 
of June make a good crop. 


Cross-Examination by Mr. O’Conor. 


T had not seen this land in question before Sunday. We 

spent maybe an hour on the land. We went down to 
3867 Peru and crossed the river bridge and walked south. 
We went in on the land with Mr. Hawthorne. We went 

on the land that lies east of McCormick’s slough. I 
3868 wouldn’t say that we walked over all the land, but we 
went over the biggest part where there was corn. We 
walked over some of the land where no corn was growing. 

I don’t know how much land was in crop. We crossed 
3869 the [llinois River. I know the land and I was over 
the land located near the Illinois Central Railroad tracks 
3870 and C., B. & Q. tracks. We went down on that land. 
I remember going.in on the land west of the C., B. & Q. 
and south and east of the Illinois Central. We walked 
3871 from the railroad. We were there about an hour; looked — 
like tolerably good soil to me. It looks like a good place 

to raise corn, That is true of all the land in controversy 


850 


that I examined. I think there was eighty or ninety 
acres in the first piece we examined. That was in corn. 

3873 I doing my gardening, myself and my boy attend to 
about twenty acres. We farm some and garden some. 
We raise twelve or fourteen acres in corn and the rest 
is garden. It would take a good many men to operate a 
400-acre piece of land used as a truck garden. After 

3876 we had examined Section 21 we got on the car and rode 
up to La Salle. 

3879 We examined the land south of La Salle. The land 
there was about the same in general character; appar- 
ently some higher. It didn’t look very much different to 
me. I couldn’t say how much land we looked at alto- 
gether. It would be a hard proposition to truck garden 
150 acres, or a tract as large as that. 


3884 CHarLEes H. Nico.et, a witness called by the defendant, 
testified as follows: | 


Direct Examination by Mr. Cluperfield. 


My name is Charles H. Nicolet. I am by profession a 
civil engineer; was city engineer for the City of La 
Salle; have been engineer for Matthiesen and Hegeler 
Coal Mining Company located in the City of La Salle. In 
1892 I established some bench marks in the vicinity of 
the City of La Salle at various street corners. I think in 

3885 the neighborhood of twenty-five or thirty bench marks 
were established. They were north of the Rock Island 
right of wav. They vary from 100 yards to six or eight 
hundred yards; possibly half a mile from the Rock Island 
tracks. I know. where the Union shaft of the La Salle 
County Carbon Coal Company is located. I know the 
vein of coal there worked under the City of La Salle 
at the present time. Their work in that mine has ex- 
tended from the north, to the north line of Fifth street, 


851 


which is about a quarter of a mile north of the shaft. 
After I had established these bench marks in the City 
of La Salle, by subsequent checkings, I observed a subsi- 
dence in that city. I observed a subsidence of about one 
foot in 1895 and ’96, at the corner of Third street and 
38886 Bucklin. A year or two later I checked up again for 
the purpose of making observations of this subsidence. 
My recollection is it had gone down a total of 1.6 feet. 
Since that time I have not made any further observa- 
tion to see whether there is any further subsidence. I 
mean observation with an instrument. Ordinary observa- 
tion would not detect any subsidence or settlement. I 
observed it at more than this one point. That is, the 
subsidence. It was not uniform at the different bench 
marks or check marks. When I found there was a sub- 
sidence at this corner mentioned I ran levels over the 
streets in order to determine whether the subsidence of 
3887 the earth had extended extensively, and at that. time it 
had extended just about a block each way from this bench 
mark. I did not afterwards determine whether the area 
had spread. There is a heavy limestone strata immedi- 
ately under the streets, for seventy or eighty feet below 
the surface, and then a succession of shales, sand stone 
and limestone in thin layers. I have noticed the cross- 
section of this same deposit from the river side. It 
breaks off at the south line of Canal street, or Just north, 
at a variable distance from the river, because of the bend 
3888 in the river at that point. At one time there was an. 
immense stream down through this valley and the ages 
eut the rock out to a considerable depth below the river 
bottom and this was afterwards filled up with drift, gla- 
cial drift; by erosion presumably. From the time that 
I established bench marks to the time when I checked up 
and found that there had been a subsidence of 1.6 foot 
over the ground where the La Salle County Carbon Coal 


852 


Company was mining, I should say roughly was about 
from four to five years. The amount of drift is variable. 
In a general way I am familiar with the geological for- 

3889 mation of the various strata down to the coal. The 
third vein of coal at that point is about 350 feet below 
the bottom. The second vein is 200 feet down and is 
about five feet in thickness. The third vein is three or 
three and a quarter feet thick. 


Cross-Examination by Mr. O’Conor. 


I was city engineer of La Salle from 1893 to 1896; then 
with the M. & H. for sixteen years. The M. & H. Com- 
pany own about one-half of the coal underlying La Salle. 

3890 The M. & H. Company own practically everything of the 
coal that lies east of the west line of Joliet street in the 
City of La Salle. ‘The coal that lies west of the east line 
of Joliet street in La Salle is owned by the Carbon Coal 
Company. 'They have mined out a portion of the second 
vein underlying La Salle. It is located contiguous to the 
shaft of the Carbon Coal Company. Judging from their 
own maps, I should say it extends something like half a 
mile in a cirele from the Union shaft. That would ex- 
tend their workings approximately to Joliet street. I 

3891 don’t know how much coal was taken out in the second 
vein. They work the second vein in what they call room 
and pillar work. I have never been in the second vein of 
the La Salle County Carbon Coal Company mine. I 

3892 don’t know how much coal was taken out. I can’t say 
there has been a subsidence in the City of La Salle due to 
the taking out of coal. My judgment would be that the 
subsidence was due to that. That is, to the taking out 

3893 of coal. The subsidence, as I said, was 1.6 of a foot. I 
am not familiar with subsidence from actual experience 
IT am not sure that the mining of coal would show any 
effect on the surface at different times, but I am sure 


893 


there is an effect to be noticed in the Cities of La Salle 
and Peru, on the surface, from the taking out of either 
3894 the second or third vein of coal. I don’t know it was 
from the effect of mining the coal or taking out the coal, 
3899 but my judgment is it was due to that. My judgment is 
based on common sense, If there has been a subsidence 
of this surface and there has been an excavation below, 
it is a natural conclusion or inference that it is due to 
3896 that excavation. J don’t know when the process of sub- 
sidence begins nor progresses. I first made bench marks 
3397 in the City of La Salle in 1893 or 794. I was city engi- 
neer at that time and it was a matter of convenience for 
the city. JI cannot at this time state in detail each one 
of the places where bench marks were made. I remember 
this one at Third and Bucklin street. JI remember one 
also at Ninth and Sterling’ street, and at Crosat and Sixth 
street, and at Fifth and Tonti, and Fourth and Hennepin 
streets. I don’t recall any others definitely. I cannot 
locate any bench marks definitely on First street. Third 
and Bucklin is the only one I distinctly remember. I 
3898 can’t say as to whether the subsidence would be wuni- 
form in character. They have paved the City of La 
Salle on First street; in 1891 or 1892. They have paved 
Seventh street, but I can’t give the date; also Buck- 
lin street. Hiram Holmes was street commissioner when 
IT was city engineer. The street cars were running on 
Third and turning south on Bucklin street in the year 
1892. They had been running there for some years prior 
3899 to that. I put bench marks in the northeast corner of 
the street; put it on a large tree near the base of the tree. 
It was a spike driven in the tree. I don’t know who the 
owner of the lot was. The lot is now vacant. J think the 
tree is still standing. I have not looked for that bench 
mark of late. It was a railroad spike that I used; an 
ordinary railroad spike. It was put in the base as close 


854 


to the bottom as possible. I should say six inches, maybe, 
3900 from the surface. The tree was probably fourteen 
inches in diameter. That tree has grown since that time. 
The spike was placed there in ’93 or 794. I was giving 
grades for a sidewalk when I first determined that there 
had been a subsidence and it started from a known bench 
in the east part of town. JI don’t remember which one, 
but it is a matter of record in the city engineer’s office. 
After I had finished staking out the sidewalk I carried 
my levels over to the bench to check my work. This sec- 
ond bench was the bench I marked at Third and Bucklin. 
I found that bench was apparently a foot lower than the 
3901 record. Those notes are in existence at La Salle. It is 
twenty years since I have seen them. I didn’t look them 
up as a matter of refreshing my memory at this time for 
this case. My recollection is that the survey was made 
two years later, about 795, so that in the two years in 
that mark there was a difference of about a foot. Third 
street was not paved at that time. The street cars were 
running at that time. I discovered that the street had 
gone down about a block each way; about a block north 
and two blocks south. That would take it practically 
to Main street. JI don’t think I run any levels on Main 
street. It was not paved there at that time. On Third 
street it went to Berlin street, a block west. I am not at- 
tempting to account for it. There was no jump-off on the 
3903 street car tracks. It run down to zero at Third street, 
practically zero, and there was no settlement at Fourth 
and Bucklin, and there was practically no settlement at 
Wright and Third, that is one block east, and there was 
practically no settlement beyond Berlin, that is one block 
west. ‘The settlement extended down to First street. I 
don’t remember just how much it was at First street, but 
3904 it extended down to the Rock Island depot, down that 
street. As I remember, it was about a year and a half 


895 


or two years afterwards, along about ’96 or ’97, that L 
next examined it. I ceased to be city engineer in 1896. 
The zero that | figured from was the canal lock. I think 
3905 Ed Noonan was my assistant. I think probably that 
3906 that railroad spike was sticking out of the tree an inch. 
3907 I have lived in La Salle a good many years. I think 
there is a two-story frame house on that corner. I don’t 
know that the sidewalks had been affected. I didn’t ob- 
3908 serve that. I couldn’t say as to the street; nor as to 
the houses; or the brick buildings. I didn’t notice any 
effect along the street at all. 


3920 CHarLEs Carney, a witness called by the defendant, tes- 
tified as follows: 


Direct Examination by. Mr. Chiperfield. 


My name is Charles Carney. I reside in La Salle. I 
am supervisor of track on the division of the Illinois 
Central Railroad located at La Salle. I have been super- 
visor of that division for five years last March. I know 
where the Illinois Central bridge is located over the [li- 
nois River and a point six or seven hundred feet south 
of the Illinois Central bridge over the river. I have no- 
ticed a sinking in the tracks of the Illinois Central Rail- 
road at that point. They have sunk maybe fourteen 
inches; usually in the spring and in the summer months. 
It is sinking continuously. I think the cause of the sink- 
ing was the taking out from under the roadbed of the coal 
at that point, I notified the roadmaster that the sinking 

3923 was occurring right along. I don’t know that the bill 
for raising the tracks and maintaining it was paid by the 
La Salle County Carbon Coal Company, for the repair of 
these tracks. I reported and gave the cost for it to the 
superior officer and as far as the company’s paying the 
bill, IT don’t know, I have not seen much sinking at that 


856 


3924 point in the last year; in the summer months of the last 
four years, that is prior to last year, I have noticed the 
sinking; this sinking of fourteen inches has occurred dur- 
ing the time I have been supervisor of tracks. 


Cross-Examination by Mr. O’Conor. 


3925 I couldn’t locate the sections. The sinking was about 
900 feet south of the bridge. I refer to the Illinois Cen- 
tral bridge. I think there are about twenty piers run- 
ning across the bottoms of the Illinois Central bridge. 

3926 They are large rock piers, about ten feet wide, I should 
judge. They are about forty feet long. The bridge is in 
the neighborhood of fifty-five feet high. At present it 
is a steel structure. It has been for the past ten years. 
It was a wooden structure prior to that time. After you 
eross the river at La Salle the track runs on a large fill, 
about thirty-five, maybe forty, feet high. There has been 
an increase in the height of the road, by repairs, gravel, 

3927 and so forth, in recent years. The ground underneath 
the Illinois Central right of way would not be soft ground 
at this time. They have been running on that fifty-five 
or sixty years and it is hard down to the rock. I should 
say that the sinking seemed to show for about 100 feet 
and then it ceased. The track would go down, go out 
of line. We had to keep the track lined up there. The 
settling of fourteen inches extended over a period of 
four years, I should judge. I didn’t notice much sinking 
in the last year. In the winter months it would be frozen, 
packed, and it would naturally hold the travel without 

3929 settling. We ran large freight trains over there. It is 
a single track. The tracks would be repaired generally 
in the summer time. Our track men worked there all the 

3930 time. I don’t know what caused the sinkage. I don’t 
know of my own knowledge whether coal has been taken 
out of there. I said J thought it was. I don’t know of my 


807 


own knowledge. I don’t know what became of the bills 
that were sent to the La Salle County Carbon Coal Com- 
pany for repairs. I have had tracks settle out in the 
country at other places, at mines. 


3932 C. H. Tipss, called as a witness by the defendant, tes- 
tified as follows: 


Direct Examination by Mr. Chiperfield. 


My name is C. H. Tibbs. I live at South Bartonville, 
near Peoria. I am helping the gardener at the asylum 
farm; raising vegetables, on some overflow land, some- 
thing like a mile from the river. I have seen and exam- 
ined the lands involved in this suit, located in the local- 

3933 ity of Peru and La Salle. I was over on the land near 
Peru last Sunday. In color the soil is about the same as 
the land in the bottoms I am familiar with down the 
river. Between the 20th day of June and the 1st day of 
November, vegetables could be raised on there. 


3936 CHarues Krause, called as a witness by the defendant, 
testified as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Charles Krause. [I live in Peoria, Ilinois. 

IT am a garden trucker, J have been one all my life. I 

am forty-two years old. The operations are carried on 

in the south part of Peru. We are within the city limits. 
3937 The land ts partly bottom and partly upland. The bot- 
tom land overflows. I have examined the land in contro- 
versy in this suit yesterday afternoon and observed, in a 
general way, the kind of soil and surroundings of the 
land. Between the 20th day of June and the Ist day of 
November they could raise almost anything there in the 


858 


truck line, vegetables, except possibly onions. That 1S, 
seed onions. Potatoes is not a good paying crop for 
bottom land soil. I have had experience in it. Except 

3938 potatoes, they could raise almost anything, sweet 
corn, tomatoes, cabbage, beans, lettuce, radishes and nu- 
merous other things; turnips, cauliflower, endive, cab- 

3939 bage; all kinds of truck or garden products. I prac- 
tically raise everything in the market gardener’s line. I 
have had an opportunity to see and observe the profits to 
be derived from raising vegetables of that kind; the cost 
of raising it and so forth. Based upon my experience and 
knowledge, I have an opinion ag to the value of this land 
in question in this suit for the purpose of raising these 
crops. I think it would be worth $100 an acre for that 
purpose, at least. 


3940 Cross-Examination by Mr, Butters. 


In appearance the soil is very rich soil. I don’t know 
the chemical constituents and have not had it analyzed. 
It would be very valuable land if the crops were not in- 
3942 terfered with by the overflow. Sometimes you will 
strike a good market in the middle of the season. Some- 
times early in the season. It is a speculative business 
with me, with all trucking. We find a market always for 
everything that we raise. Our main market is Peoria. 
The value of land for this purpose depends somewhat 
upon the market available. I know nothing about the 
market value of lands in this vicinity generally. I know 
what the market value of corn land or any other good 
3843 land is in the State of Illinois. I would say that $100 
an acre was, if anything, too low a value for this land. I 
would not say that it was worth $500. We usually use 
lime to sweeten sour land, 


859 


3945 Frep Krauss, a witness called by the defendant, testi- 
fied as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Fred Krause, Jr. I live in Peoria, 615 
Griswold street. I ama gardener, I have been engaged 
in that line of work since J have been able to work. My 
age is thirty-eight years. We have forty-five acres of 
overflow land. We have a vegetable garden. I have seen 
the land involved in this suit. I have observed the char- 

3946 acter of the soil. I am familiar with overflow lands in 
the Illinois bottoms. Between the 20th day of June and 
the 1st day of November, I think most any kind of a veg- 
etable, except those that need the winter moisture, could 
be raised. Everything except possibly onions and pota- 

toes would do well. I think beans, sweet corn, tomatoes, 
squash, anything in the rough feed for stock, could be 

3947 grown and raised on the land. I have an opinion, based 
on what I saw and observed and my knowledge of the 
gardening business, as to the fair cash market value of 
that land at the present time. I think it would be worth 
somewhere around $75 per acre. 


Cross-Examination by Mr. O’Conor. 


Good corn land is selling from two to two and a half. 
If you could put corn in at the proper season and have 
it mature and yield a crop that would run from seventy 
to ninety bushels an acre, I would say that the land would 
be worth as much as good prairie land. I know nothing 
about the history of this land. I know the history of 
our bottom lands, and I think it is the same here. [ 
think that we saw nearly the whole patch of land. I don’t 
know how many acres. We drove over there in a hack and 
went down on the land near Peru. We didn’t take up 


&60 


any of the soil, but we pulled out weeds and saw what 
3949 it was. We didn’t go all through the field, but we also 
saw the lands lying south of La Salle. We drove there 
3950 from Peru. We saw corn stalks on this land. We merely 
looked at the land that was shown to us as being the land 
that was involved in this suit. » 


3952 Wituram Barry, a witness called by the defendant, tes- 
tified as follow: 


Direct Examination by Mr. Chiperfield. 


My name is William Barry. I reside at Streator, Ih- 
nois. I am yard foreman and track foreman on the C. 
B. & Q. I live at 212 East Broadway. I have been road- 
master before I became master of the yards there up un- 
til seven years ago; was roadmaster between four and 
five years; from 1905 to 1910. I am acquainted with the 
lands of the La Salle County Carbon Coal Company in- 
volved in this suit. The C. B. & Q. tracks run across that 

3953 land. We call the tracks east and west. It is that way 
- on the time card. I know the place known as Jones 
Crossing. It is just east of the north river bridge. The 
Vermillian River runs parallel with it. At a point about 
1,500 feet southeast from the Illinois River and from 
thence running towards Jones Crossing, during the time 

I was roadmaster, I have observed a sinking of the 
tracks. It was different in different years. It would 
sink more at some places. We would have to go over it 

a few times more at some places. About a thousand feet 

or close to it anyway was the distance that it was sink- 
3954 ing. In the winter time we noticed it especially when 
the track would go each way out of line and then settle 
down about six inches, in the winter time, and get out 

of line say about four inches each way. It must have 
been during the time I was roadmaster, two feet or more. 


861 


Taking coal out of the Carbon Coal Company’s mine, 
from under the track, was supposed to be the cause of 
the sinking. It would get a little further under the track 
each year. As the work progressed it would travel along 
the tracks. It just went down gradually; about a thou- 
sand feet altogether was covered by the sinking; perhaps 

3856 a little more. I left the job in the winter time. The 
sinking was most noticeable in the winter time because 
you couldn’t get the track in line then on account of the 
frost. It would be about eight inches out of line. Before 
the sinking commenced in different places in the road- 
bed the condition of the track was in good shape. It 
only sunk at the places along there where the coal had 
been mined. 


Cross-Examination by Mr. O’Conor. 


I know where the coal was taken out. J was never 

3957 down in the mine. I have been down at Kangley down 
there where the coal was taken out, the same way our 
track would sink, the track settled and as soon as they 
stopped taking the coal, why, there was no more trouble 
3959 with the track. Kangley is near Streator. The land I 
3960 have in mind and refer to is east of the river bridge. I 
know the coal had been taken out by the settling of the 
track. That is why I know it. I didn’t see it taken out. 

I wasn’t down in there. Each year, as they have taken 

out the coal the settling kept going towards the east. 
That is east on our tracks, going from La Salle. I know 
where the dump is located on this land. That is what we 
3961 call the Jonesville mine. I think the coal has been taken 
out a couple of thousand feet or more east from the 
dump. I believe, from the fact that we had repairing to 

do to the tracks on account of the settling; it settled 
there every year. I have not noticed it this year. I am 

not on the job any longer. I noticed it the year before 


862 


3962 last. That would be the year 1910. I have been three 
years off the job. I know where the land involved in this 
case is. I know it myself from personal experience. 


3964 Emin STEMPFEL, a witness called by the defendant tes- 
tified as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Emil Stempfel. I live in Peru, Illinois. 

I have lived there about 54 years. My business years 
ago was boating. I was formerly employed by the Huse 
& Loomis Company, Ice and Transportation Company. 
3965 I was mate of the boat. My business now is carpenter 
for the Illinois Zine Company in the rolling mills. I own 
a small boat now, a launch, 26 feet long and about 6 
feet wide. I am familiar with the Illinois River. I re- 
member the time of the closing of the Henry Dam, but 
don’t exactly remember the year. I know that raised the 
water at Peru; I should judge about five to five and a 
half feet; something in that neighborhood. I noticed the 
Illinois River up until the time that the Sanitary Dis- 
trict channel was opened. There wasn’t very much cur- 
rent in the river up until that time. I should say about 
two miles an hour. I have observed the current in the 
Illinois River since that time. It has more current. I 
should judge that at low water now the current is about 
two miles and a half. I know Cedar Creek. Cedar Creek 
is on the south side of the bayou or slough, out of which 
we used to cut ice. It was called the Boland slough or 
3967 Huse & Loomis slough. I have seen Cedar Creek in 
high water. During floods or freshets I have seen it six 
feet high and 30 feet wide. Cedar Creek empties into the 
line of the Boland or Huse & McCormick’s slough. There 
is a bar that has been formed there where Cedar Creek 
came in. It comes in right from the south and when it 


863 


gets to the mouth of this slough it used to run up in 
3968 this MeCormick’s slough. The only way, when we used 
to go there with a skiff or anything, we used to have to 
go down through the willows and around on the other 
side. There was drift wood lying there over which the 
bar has now formed. The water now in the sloughs, 
MeCormick’s slough, is higher than it is below; by below 
I mean in the Illinois River. It might be a foot or 18 
inches or something like that. I haven’t been down 
there these last two years. I think the water is held up 
3969 in this slough higher than it is down below. I have 
known this land claimed by the La Salle County Carbon 
Coal Company and the land that Fox had and the land 
that Waugh used to farm. I know about the high waters 
of the Illinois River. I think in 1892 we had extreme 
3970 high water. I was sent across to a shop on the slough 
at one time, to get some tools, just before husking time 
and the water had come up and we rowed over in a boat 
and could just see the tassels of the corn sticking out of 
the water. I don’t remember the year. I know they 
3971 raised corn on this land before 1900. I don’t know how 
much or anything like that. I used to see it and was ac- 
quainted with it. I have an opinion as to what was the 
fair cash market value of that land just before 1900. If 
the coal was sold it was worth about $50 per acre. I 
3972 think that the tiling and water pouring in all at once 
into this river and the streams after a rain, is filling this 
river up. Tiling has had a big effect on the Illinois River. 
I know that after a rain the waters all rush in at once 
and the river is filled up. I remember in the old days 
when I was boating. There is some difference in the way 
the river rises and the way it used to when I knew it. 
3973 I think since the drainage district water has come in 
and the way we used to figure the stage of the river, that 
the river has been raised about 10 inches; probably a 


864 


little more. Probably a little less. We used to Judge it 

3974 by the height of the river at Tree Top Bar. Formerly 
the bottom of the river, we used to find sand, and since 
the tiling and drainage operations have been carried on 
of late years, we find two feet of mud on the bottom of 
the river. Down at the place we call Riverside Park 
there was nothing but a gravel bank for a mile. Today 
you will find three or four feet of mud. That is where 
the river is wide and it is shallower and forms there 

3976 quicker than it would in the channel. At the present 
time, without the coal, I think that that land is worth $50 
per acre; including the coal it is worth a little more. I 
would say it is worth about $75 per acre. 


ao7T7 Cross-Examination by Mr. O’Conor. 


I am 61 years old. I think the [linois River, before 
the Sanitary District water was turned in, had a current 
of two miles an hour at the bridge at Peru. It would 
run faster where the river is narrower. The wider the 
river the less the current. I think the turning in of the 

3978 water of the Sanitary District has increased the current 
half a mile an hour. When the river is high it would be 
greater. I think that would be the current in low water 
during the summer months. Up near Peru, the river is 

3979 narrow and there was always a good current there. 
There used to be a green growth, a skum on the river. It 
has not been there for years. It has not been there late- 

3980 ly. I think the Sanitary District water was turned in 
10 or 12 years ago. I noticed a little effect on the river 
from the turning in of the water. I noticed it the first 
year. I learned from the papers that the waters had 

3981 been turned in. I don’t know as it made any change 
in the color of the water. I drink the water now when 
IT am dry. -I drank it a year ago right out of the river. 

3982 I have not noticed any difference in the water. I re- 


865 


member when Mr. Waugh had the coal company land. 
There was a good deal of timber on Waugh’s place over 
there that he was farming. I don’t know how much 
timber he cut off. I don’t think it was any 70 or 80 acres 
I don’t know how much land was fit for cultivation in the 
3983 year 1900. I don’t know how much corn was raised on 
the land for the 10 years preceding 1900. I farmed some 
of that myself once. That was about 40 years ago. I 
have not farmed it since. I base my valuation on what 
they are getting for it now and one thing and another, 
3984 and from being on the ground. Fifty dollars is what 
I would give for it in 1900. That don’t include the coal. 
That was for the surface. Sometimes men will go in 
there to cultivate all of it in the spring and they never 
get it out, all of it. Basing my opinion on what I have 
seen, the crops I have seen hauled off, there was one year 
3985 that they lost the crop. I don’t remember the year. I 
don’t know what Braun paid for his land. They have 
3986 been getting crops off the land since the district water 
was turned in, off and on. They had a good crop last 
year and they have one this year, some of those people. 
I don’t know how many acres were planted nor I don’t 
know how many acres were planted last year. I don’t 
know how much corn they have in there nor how much 
it is possible to plant, when the water is off. There is 
3987 some corn being hauled over there now, being brought 
from those bottoms into the cribs at Peru, and there was 
3988 last year. I think it is Brannen’s corn. I don’t know 
how many acres there are in that piece today that can be 
cultivated I was considering it merely as a piece of corn 
3990 land. They tried to raise oats on it once, I know, and 
ecouldn’t. JI have often been on this land. It lies close to 
Peru. I don’t know what it 1s worth for raising pota- 
3991 toes or other things. Corn is the only thing I have seen 
them raise on it. I was not considering that trucking in 


866 


3992 fixing my value. It might be just as valuable for those 
purposes today as it was in 1900, and it might have in- 
creased in value since 1900. Land in this neighborhood 
has increased a good deal out on the prairie, but I don’t 
think this has increased any in the bottoms. There was 
40 acres sold there right below Peru for $130, about a 
year ago. Nobody would bid on it and it was good 
ground, too. 


2996 Epwarp J. Keuiy, a witness called by the defendant, 
testified as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Edward J. Kelly. I reside in Chicago, 
Illinois. I am a civil engineer. Have been for 18 years. 
I am in the employ of the Sanitary District of Chicago 
for 18 years. I had charge of the concrete construction 
at Lockport, Illinois, from 1894 to 1897. From 1897 to 

3997 1900 I was with the United States Government, in charge 
of the topographical surveys in New York and Canada. 
From that time until the present time I have been with 
the Sanitary District, five years in charge of the stadia 
work and surveys in the Illinois Valley. The balance of 
the time in charge of the North Shore Channel and gen- 
eral construction work in Chicago. I am familiar with 
the lands involved in this suit and made a survey of those 
lands in June, 1905, I think it was October, 1906, and in 

3998 November, 1907. Made what is known as a stadia sur- 
vey. In the first place, the azmuth was taken from the 
United States Government azmuth and established in 
this vicinity and carried on in our surveys. Al] the phys- 
ical conditions are shown in this survey on those lands, 
the different lines, river lines, different elevations and 
the ground, houses, fences, ditches, anything that could 
be seen with the naked eye is practically shown in the 


867 


survey. This was done by tying these points in stadia 
boards and transit and getting the distance and the angle 
of the azmuth, what we call the vertical angle. In mak- 
ing the survey we made observations with reference to 
the elevations of the different portions of the lands in- 
volved. We observed the crops there growing. We made 
observations with reference to the timber, the spoil bank, 
the waste lands, anything and everything that was on the 
land was observed and a record made of the same. From 

3999 the field notes then taken I constructed map of these 
premises and the premises adjacent thereto. This map is 
a true, accurate and correct representation of these prem- 
ises and their elevations and the natural objects there > 
found. (The plat referred to is marked Defendant’s Ex- 
hibit 281.) | 

The outlines marked in deeper red and shaded a red- 
dish color is the Carbon Coal Company’s lands in ques- 
tion in this suit. I have compared the tracts thus out- 
lined on the map with the description in the plaintiff’s 

4000 declaration. The premises are truly, accurately and 
correctly outlined on this plat so far as the lines of sur- 
vey are concerned. 

The waving irregular line traced in blue indicates the 
elevations. Every part covered by that line shows the 
same relative elevation. By the use of this plat I can 
tell with accuracy the elevation of the different portions 
of the premises. In a portion where the elevation is 130, 
from there to the line marked 131, there is a slope of one 
foot. It raises one foot between the lines given. Those 
irregular lines are called contour lines. In connection 

4001 with the contour lines there are figures employed. Where 
the figure 130 appears, in connection with the contour 
lines, that shows it is 130 feet below Chicago datum. 
Where the figure 135 appears, that means it is 135 feet 
below Chicago datum. The 130 is the higher elevation of 


868 


the land, compared with 135. It would be 5 feet higher 
and that is true wherever these contour lines appear and 
where these elevations are shown. I made this survey 
myself. That is, with my party. That is a true, correct 
and accurate plat of that survey. 


4002 Cross-Examination by Mr. O’Conor. 


The government notes that I used in making this plat 

were the government lines, the triangulation lines, a 
starting point, we used, which we checked up afterwards 

by sighting on Polaris, the north star. It doesn’t show 
4003 the acreage. It shows the height of the bank by the 
‘river; also running along the east side of Section 21, 
along south of the river. It does not show the height of 

the bank insofar as the level of the water at any particu: 

lar time is concerned. Just shows the top of the ground 

at the time the survey was made. It shows the bank. It 
shows the elevation of the water and the bank at the time 

the survey was made. The survey was first started in 
June, 1905. Part of it was made in 1906. Part, down 
4004 what is known as McCormick’s slough, was made in 
1906. That was made in October, 1906. I don’t remem- 

ber what the stage of the river was then compared to 
1905. I think I could tell by examining the plat. The 
elevation of the water here was 137.8. The elevation of 
4005 the water in the river was 140.0. I determined the 
height of the land and the elevation to compare with the 
height of the water in the river at that time by using the 
transit. Where the contour line shows and is marked 
142, compared to the point, minus 135, it shows where 
4006 there was some sort of a depression. The bank there is 
practically uniform. It does not vary, one place above 
4007 the other. The figures are correct along the bank. 1} 
know that at the time the survey was made that the fig- 
ures placed on the plat and the plat was correct. I don’t 


869 


think there has been any change down there iu the con- 
ditions of the bank of the river. Some might happen but 
I don’t know. I think probably I was over that ground 
twenty-five times and observed the bank of the river. I 
think it is about the same height in the middle of the sec- 
tion as it is opposite the City of Peru. I don’t think 
there is a variation of five or six feet in the height of the 
4008 bank. The survey or the making of the plat took all 
told about five months. That is, in the different years; 
the last of the work being the 5th of November, 1907. 
4009 Nothing on the plat to show the last day we worked. 
4010 The plat was actually made by another man under my 
direction; under my personal supervision here in Ot- 
tawa. I did not figure up the acreage on it. I was in- 
structed to make a general stadia survey, and went out 
on the ground myself and made the survey. I ran the 
instrument and I made part of the figures. I was out 
4011 there with my crew and made the survey as surveys are 
ordinarily made, under conditions of that kind. I was in 
charge of the work. I had to rely on my recorder, Mr. 
T. H. Harrington, for the figures or conclusions which 
were given to me. The plat also shows the relative ele- 
vation of the land lying along the Illinois River near the 
Illinois Central Railroad, compared to the east and north 
4012 bank of Section 21. The bank is lower, five feet lower. 
The bank along the east of the land that lies west of the 
Illinois Central Railroad, to the south and east of the 
river, within a foot or so, is uniform in height. We took 
a shot every 200 feet unless the surface changed. By 
4013 taking a shot, I mean a man goes along the bank of the 
river with the stadia board and the man at the instru- 
ment sights and takes a shot every 200 feet along there. 
If he sees a difference in the elevation he gets an inter- 
mediate shot in there. We took the gauge readings every 
day. The bank line is not the water line. I think there 


870 


4014 is a difference between the elevation of the land in Sec- 
tion 21 compared to Section 22 and 23, of about five feet. 


The map was received in evidence, marked Defend- 
ant’s Exhibit 281. 





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SURVEY OF THE 


ILLINOIS RIVER VALLEY 


sc. a 28 Se ~ > na 2 a sh 7 la: 4 } ee AN, ‘ 















871 


4016 Re-direct Examination by Mr. Chiperfield. 


The mark ‘‘elevation of water surface, October 30, 
1906, 140’’ means that the water is 140 feet below Chi- 
cago datum, at the time it was taken in November, 1906. 
4017 Whenever these dates appear in connection with the 
water surface, giving the date and elevation, it means 
that readings were taken at that time in the river to de- 
4018 termine the elevation. In making the comparison a 
little while ago, between relative elevations the land 137.8 
is higher than 140, by 2.2 feet. The map is drawn to a 
scale, about 200 feet to an inch. The outlines of the tim- 
ber and crops and other objects upon this land are 
shown and depicted truly, correctly and accurately, as 
4019 recorded in the field notes. The survey was made in 
connection with the general survey from Joliet to Graf- 
ton. I don’t know that it was made to be used in con- 
nection with any particular law suit but it was not 
changed nor magnified and no fact disclosed by the 
eround or water surface was in any way changed in the 
making of this survey, and each of the recorded objects 
upon this plat appeared in the natural physical condition; _ 
appeared as recorded here upon this plat. When I was 
4020 making this plat for the purpose of depicting physical 
conditions, I did not know on whose land I was making 
the survey. I may have had an idea it was that of the 
La Salle County Carbon Coal Company but the plat was 
not in any way, shape or manner changed from the 
actual, physical conditions, for the purpose of this law- 
suit. The heavy red line appearing on the plat around 
the tracks that are numbered 2, 5 and 4 indicate the land 
in question in this suit. That is the boundary of the 
land, the outline of the land. 


87/2 


Re-cross Examination by Mr. O’Conor. 


4023 In making the survey along the river bank you don’t 
shift your instrument every two or three feet until you 
reach the brow of the hill. You try to get a uniform ele- 
vation along there such as the natural eye would see, and 
when you get to a point where you actually carry your 
level, the land, taken as a whole, is practically level. 


Re-re-direct Examination by Mr. Chiperfield. 


4024 Where the contour line, marked 135, shows it indicates 
that the hand was five feet higher back there than the 
back. That would be back probably about 15 or 20 feet. 


Re-re-cross Examination by Mr. O’Conor. 


4026 I never happened out there on that land prior to the 
year 1905. I don’t know what its condition was in the 
year 1900. I don’t know whether the bank of the river 
was the same in 1905 as 1t was in the year 1900, or 
whether the condition of the land itself was the same. 
I don’t know a thing about it up until 1905. I don’t know 
what changes might have taken place between the year 
1900 and down to the year 1908. 


4028 Jon Kominsxy, a witness called by the defendant, testi- 
fied as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Joe Kominsky. I work for the C. B. & Q. 
Railroad for over four years on the section. The sec- 
tion is two miles east from the plow factory and four 
miles and 1,500 feet west from the plow factory. I don’t 

4029 go to Vermillion River. I go across the Illinois River. 
I go about a mile and three-quarters. I had some trouble 


873 


south of the Illinois River with my tracks. It would 
slide. I have to raise them up; about five or six hundred 
feet from the bridge; sometimes raise him about twelve 
inches; sometimes fourteen inches. It would sometimes 
show a hump and I have to raise the track to make him 
4030 twelve inches; sometimes 14. Sometimes about five or 
six months after will have to raise it again. I don’t know 
how many times altogether, nor how much altogether I 
had to raise the track; four or five times in the year. I 
don’t know what makes the track sink. On either side 
of this place where the sliding and sinking occurred the 
4031 track didn’t sink there. It would show for eight or 
nine or ten rail lengths. The rails are 28 and 30 feet 
long. Up along the Vermillion it didn’t sink any more. 
The track was right in that place, about eight rail lengths. 
4032 The road bed is made of gravel and sand and cinders. 
As you go near to the river it was made of the same 
thing. 
4033 Cross-Examination by Mr. O’Conor. 


Looking at Exhibit 18.° There is the C. B. & Q. Rail- 

way running across the bottoms, or part of the bottoms. 

’ Here is the right of way of the Illinois Central. There 

is what we call Jones’ Crossing. Here is the bridge 
4034 across the Vermillion River. I don’t go within half a 
4035 mile of Jones’ Crossing. The sinking of the track was 
on the north side of Jones’ Crossing. It was on the east 
side of the Illinois Central right of way, probably five or 

six hundred feet, and extends for a distance of eight or 
nine lengths of rails. The sliding of the track was, it 
4036 just went down. That don’t happen along every place 
there. It happened four or five times last year. It hap- 
pened four or five times this year. I worked in charge of 
that section for two years up from La Salle. I formerly 
lived in Peru and had charge of the section in Peru. T 
know that this place is sinking. I haven’t noticed any 


874 


4037 of the piers in the river sinking. Nor any sinking along 
the embankment. The embankment on the north side of 
the river is the same height; just as high as the embank- 
ment here. Hasn’t been any change in conditions there 
at all. In the past two years I should say that all told 
the track sank twelve to fourteen inches in each year. It 
would make about twenty-four inches sinking since I 

4040 have been there. I noticed the track sinking at other 

4041 places along the road. It is sinking on the west from 
Peru. It is about a mile and a half this side of Spring 
Valley, it also is sinking; on the east side of Spring Val- 
ley. I cover all told six miles and 1,500 feet. 


4044 Brrr Srrauss, a witness called by the defendant, testi- 
field as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Bert Strauss. I live in La Salle, [linois. 

I am on a section of the Illinois Central. My section 
runs from the north end of the Illinois River bridge to a 
mile anda quarer south of Oglesbee. I know Jones’ Cross- 
ing. Between the river and that crossing I have noticed 

a sinking in the [llinois Central tracks. It has settled, 
4045 I should judge,—I wouldn’t say positively the distance 
but I would say about 200 feet south of the river bridge. 

It is anywhere from two to four inches, I should judge. 
Once a week or something like that I notice it. I raised 

the track twice since I have been there since October 1st, 
this last October. It needs levelling up now about four 
inches. Including the four inches it needs raising now 
and the two times I have fixed it since October, I would 

say ithas sunk about fourteen inches. That has been since 
4046 October. October 5th, I commenced to work for the Ili- 
nois Central and it has been since then; October 5, 1912. 


879 


Cross-Examination by Mr. O’Conor. 


It has been continually sinking in the same spot. In 
that particular spot it has sunk twelve inches since the 
oth of October of this year. IJ would say five or six rail 
lengths that it gradually goes down. But there is about 
three rail lengths that is the worst, I should say about 
200 feet south of the Illinois Central Bridge, south of 

4047 the river. That is the only bad spot that I have no- 

4048 ticed. I don’t know how many piers there are on the 
Illinois Central bridge, nor how wide the piers are, nor 
how long. I couldn’t answer those questions. I don’t 
know how high the Illinois Central bridge is nor how 
high is the grade nor the embankment on which the rail- 
road runs. I should judge from the bottom to the top it 
is twenty feet; maybe more than that. JI am not sure. 

4049 There are depressions at other places on the track but 
this is the one place where it is worst. I have not been 
acquainted with the Illinois Central for many years.. I 
have lived in and around La Salle since the 1st of Octo- 

4050 ber, 1912. I don’t know what causes the sinking or de- 
pressions. 


Joun Marrno, a witness called by the defendant, testified 
as follows: 


Direct Examination by Mr. Chiperfield. 


My name is John Marino. I live in La Salle. I work 

4051 for the Illinois Central. I work for the Illinois Central 
from the river. I see the track go down. It goes down 
4052 near Jones, north depot; about a mile and three-quar- 
ters south of the Illinois Central bridge the track sinks 
Sometimes a foot, sometimes four inches, sometimes six 
inches. I have seen it sink two or three times. I have 
been there three years, The track has been sinking all 


876 


-the time. About forty rail lengths, more or less, we have 
trouble with the track. There are other places that sink 
only a little. 


4054 Cross-Examination by Mr, O’Conor. 


I know the bridge across the Illinois River. The place 
I speak of the sinking is about a mile south of that. I 
refer to the depot in Oglesbee. There are two depots in 
Oglesbee. The old one and the new one; the north depot 
and the south depot. The sinking was about one-sixth 
4055 of a mile further south than the south depot. It might 
have been more. The track has been sinking at that 
point for the past three years; going down three or four 
times; sometimes we go in there once a week, sometimes 
4056 two. Sometimes the track sinks three inches, four or 
five. That has been going on for three years at this 
place. 


4057 Otro Scuututz, called as a witness by the defendant, tes- 
tified as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Otto Schultz. I reside in Peru. My busi- 
ness is coal mining. I work in the mines of the La Salle 
County Carbon Coal Company and I am familiar with 
the system of mining known as the long wall system. I 
have worked at it for about 35 vears; several years in 
iren mines and about thirty years in coal mines. I know 
the third vein of coal in the La Salle field, and it goes 
about three feet; sometimes a little more, three feet and 
a half. 


4058 They dig under the coal. That is what they call min- 
ing. Sometimes they have two feet mining; sometimes 
they have four or five; sometimes have two and a half 


877 


feet mining; in the La Salle County Carbon Coal Com- 
pany mining they undermine it sometimes two feet; 
sometimes three feet. If the coal don’t break they mine 
four feet. They put the dirt back that they take out. 
4059 That is what they call the gob. After the coal is taken 
out they have to put up props and they generally have 
the coal props, they leave the props in there; sometimes 
the props will stand for two or three months and won’t 
break; some other places if you put them in to-day, to- 
morrow when you come in again it is broke. The weight 
comes on them. The prop has to break, that is all. Of 
course, the earth settles and comes down. It don’t settle 
very fast. Sometimes it settles pretty fast and some- 
places it comes down about an inch and a half and some- 
times two inches, befere you take the coal down, where 
4060 the prop is down already. I have worked in places 
where we took the coal out and the top was heavy and 
ame down about two or three inches. Some places has 
more weight on top than some other places. Sometimes 
4061 it comes down very sudden. Other places it takes some 
time. As the earth settles they have to brush the entries, 
what they call brush; take some of them back; take two 
feet of rock and brush off the inside, because the earth 
settles there; sometimes about a foot; sometimes six 
inches. That rock is brushed off to give the mule a chance 
to travel, to get the coal out. It settles right along. It 
settles gradually and I couldn’t tell exactly how much. 
Some places, after a couple of years or so, the top and 
the bottom might be together and there wouldn’t be any 
gob left and then it is a squeeze right there; sometimes 
there is a foot or so between. I have seen the gob 
squeezed foot; sometimes it is narrower than that. It 
4062 depends on just how the weight is. Some places there 
is more weight than at others. The weight comes from 
the top. It couldn’t come from below. All the coal is 


878 


taken out in the long wall system of mining. They don’t 
leave any pillars there except where there is maybe a 
bridge or something like that where they have to leave 
the coal. Otherwise, in the long wall, the coal is all taken 
out. The coal is not taken out by the La Salle County 
Carbon Coal Company under the Illinois Central bridge 
at La Salle. 


4063 Cross-Examination by Mr. O’Conor. 


I was working in the La Salle County Carbon Coal 
Company mine in 1881. There is a man here who was 
mining coal there and they let the coal right there under 
the Illinois Central bridge. It was not taken out from 
under the railroad at that time. The Central was already 
there and the land owned by the Central. I am living at 
Peru now. I am doing outside work. Prior to that I was 
working in No. 3 shaft in Spring Valley. It is about two. 

4064 years since I worked, since I worked for the La Salle 
County Carbon Coal Company. I worked at that time at 
the La Salle shaft That was at the depot near the 
hinois Central. I worked there in ’81. I don’t think 
they have mined underneath the City of La Salle from 
that shaft. The work all went to one side. The other 
side is not worked at all. I worked in the Union shaft, 

4066 about 10 or 12 years ago. The workings of the Union 
mine run south. J couldn’t tell how far south they run. 
It is 10 or 12 years since I was working there. The Union 
mine is located on the east line of Peru and their work- 
ings run mostly east, up under La Salle and run north 
and west under the City of Peru. They seem to work 
steady in that mine. I couldn’t tell you where the south 

4067 line of their workings now is. I don’t know whether 
they are under the Rock Island Railroad there or not. 
The C., B. & Q. and the Illinois and Michigan Canal are 
both south of the Union mine at Peru. When I worked 


879 


4069 in the La Salle shaft I worked on the east side, on three 
south. I was driving in there. I think it was about a 

4070 mile into the workings from the shaft. I don’t know 
whether it was south from the Illinois River. Jn mining 
with the long wall mining of coal, sometimes you use a 

4071 sprag. Put a sprag in to hold back the coal. That is 
the safest way. After you take the coal out the coal will 
break down. The brushing is done by the coal company’s 
men. The company has to keep that open. They keep 

4072 the entry way at a certain height. The settling may 
start in one day. It may start at once. It doesn’t, as a 

4073 rule, take a week. When you are a mile away with the 
work, the settling process where the coal is first gotten 
out is settling. The earth settles right along. It may 

4074 take quite a number of years before it is completed. I 
don’t know what happens above. I know what happens 
below. I can see where it settles, but what happens above 
IT couldn’t tell you. I couldn’t tell from looking at the 
top there if it had settled. I have lived in Peru and La 
Salle a long time. 


4075 JosEPH QUIGLEY, a witness called by the defendant, tes- 
tified as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Joseph Quigley. I am general mine super- 
intendent for the Walsh Brothers’ mine located at Mar- 
4076 quette, Illinois. Marquette is four and a half miles from 
Peru. I have been located and engaged at that mine 
4076 about five years. In a general way I know the lands of 
the La Salle County Carbon Coal Company, lying across 
from Peru and east and west of the Illinois Central 
tracks across from La Salle. I have looked them over. 

T have been acquainted with the La Salle coal field for the 
past five years. I have been engaged in the coal business 


880 


all my life, since I was 11 years of age. JI am acquainted 
with the vein of coal that was found in ‘the La Salle field 
and I am familiar with the practical operation of those 
mines. I have been engaged ag mining superintendent 
for about 15 years. I have an opinion as to the fair 
cash market value of these lands of the La Salle County 

4077 Carbon Coal Company shortly after the 17th day of 
January, 1900. I think the land is worth $150 per acre, 
or two and one-half cents per ton. 


Cross-Examination by Mr. O’Conor. 


Yes, sir, I say that coal in the vicinity of La Salle was 

worth $150 an acre in the year 1900, as far as my knowl- 

4078 edge goes, because the field is practically unbroken. It 

is practically the same class of coal as we are mining at 

Marquette, the same thickness. J had no connection with 

the purchase of coal lands in 1900 or in 1908. I did not 

consider, in fixing my valuation, the surface of the land 

at all. I considered the coal only. I would think that 

the coal was worth the same just after 1900 as it was be- 
fore 1900. 


4079 Joun Copy, a witness called by the defendant, testified 
as follows: 


Direct Examination by Mr. Chiperfield. 


My name is John Cody. I reside in La Salle, Illinois. 
IT am a mine superintendent at Marquette, the third vein 
coal mining company. The mine is located at Marquette, 
Illinois. I am familiar with the location of the land of 
the La Salle County Carbon Coal Company across the 
river from Peru and La Salle and east and west of the 
Illinois Central and C., B. & Q., in a general way. I have 
been engaged in the. business of mining about 18 years. 


881 


IT am working in the third vein at Marquette. We call it 

4080 the third vein. I have been engaged in working the 
third vein at Marquette about 15 years. I have an opin- 
ion as to the fair cash market value of this property of 
the La Salle County Carbon Coal Company shortly after 
the 17th day of January, 1900. The coal rights would be 
worth about $75. 


Cross-Examination by Mr. O’Conor. 


Coal always has been worth about $75 around La Salle. 

I don’t know of any coal that was bought in the year 1900 

4081 for $75 an acre. I don’t know that coal was bought at 

that time not to exceed $30 an acre. Charley Devlin 

opened up the property that the Walsh Brothers now 

operate. J don’t know what Devlin paid for that coal 

land down there per acre. It is not a fact he did not pay 

to exceed $30 an acre for any of that coal in the year 

1900. I am confining my answer strictly to the coal. I 

am not testifying in regard to the surface at all. In my 

4082 opinion coal would be worth the same price at any time. 
It doesn’t make any difference when or where. 


Re-direct Examination by Mr. Chiperfield. 


Q. Referring to this land adjacent to Spring Valley, 
the Marquette Company’s mine, do you know whether 
vour management has offered $100 an acre for that coal 
since— | 

Mr. O’Conor: To which we object. 

The Court: JI sustain the objection. 

Defendant excepts. 


Re-cross Examination by Mr. O’Conor. 


Q. Did Mr. Chiperfield represent the Walsh Broth- 
ers? A. He does not, sir, I don’t think so. 
Mr. O’Conor: That is all. 


882 


4083 Apert LINDNER, a witness called by the defendant, tes- 
tified as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Albert Lindner. I reside at Joliet. I took 
gaugings on the Desplaines River during the months of 
September and October, 1911. The gauge was located at 
Brannan’s Bridge. I have got the records of the river 
stages at those points. 

Q. JI will ask you to produce them, if you please. 
Now, I will ask you to commence with the Ist day of Sep- 
tember and give the stage of water each day, and like- 
wise for the month of October? 

The first day of September, this is 6 4. m., 1.5 and in 
the afternoon, 6 Pp. m., 1.95. On the 2nd, 1.6 in the a. m. 
and 1,f in the p, m. ‘The 3rd, 1.5 in the A. mM, ands oem 

4084 the p. m.; 1.6 in the a. m. on the 4th and 1.7 in the Pp. M. 
On the 5th, 1.7 a4. m. and 1.55, p. m. The 6th, 1.65 a. m. 
and 1.9p.m. The 7th,1.8 4. m.and1.8p.m. The 8th, 1.7 
A.M. and1.8P.m. The 9th, 1.75 a. mM. and 1./5 P.M. “he 
10th, 1.64. ™., 1.75. m. The 11th, 1.65 a. mw. and 1.65 p. mu. 
The 12th, 1.75 a. m. and 1.75 p.m. The 13th, 1.7 a. m. and 
1.65 p.m. The 14th, 2.05 a. m. and 2.2 p.m. The 15th, 1.9 
A. M. and 1.85 p. Mm. The 16th, 1.85 a. m. and 1.8 Pp. Mo. 
The 17th, 1.65 a. Mm. and 1.85 p. m. The 18th, 3.15 a, M. 
2.75 p. mM. The 19th; 2.1 a. vw. and 1-9 p.m. The 20th 
A. M, and 2.1 p.m. The 21st, 1:5 a. m. and 2. Pp. mM. ie 
22d, 1.85 4.M.and15P.m. The 23d, 1.7 a. Mm. and 1ifoF 
mM. The 23d, 1.75 4. mM. and 1.8 p.m. The 25th, Sagan 
and 2.p.mM. The 26th, 1.85 a.m. and 2.05 p.m. ‘T'he 27th, 
184.mM.and1.9pPr.m. The 28th, 2. a.m. and 1.7 p.m. The 
29th, 1.8 4. m.and1.85 p.m. The 30th, 1.84. m. and 1.8 
P. M. 

October 1st, 1.6 a.m. and 1.9 ~.m. The 2d, 2. a. m. and 


883 


4085 2.p.m. The 3d, 1.9 a.m. and 1.95 p.m. The 4th, 2.1 
A.M. and 1.95 p.m. The 5th, 2.05 a. m. and 2. p.m. The 
6th, 1.95 a. m. and 1.95 p. m. The 7th, 1.9 a. m. and 1.8 
p.M. The 8th, 1.64. mM. and 2.p.m. The 9th, 2. a. m. and 
2.2Pp.mM. The 10th, 1.9 a. m. and 2.05 p.m. The 11th, 1.7 
A.M, and 1.95 p.m. The 12th, 1.9 a. m. and 2. p.m. The 
13th, 1.85 a.m. and 19p.m. The 14th, 1.8 a. m., 1.85 
p.M. The 15th, 1.6 4. m.,1.9 p.m. The 16th, 2. a. m., 2.1 
p.M. The 17th, 2.05 a. m., 2. e..m. The 18th, 1.9 a. m., 2 
Pee, the 19th, 2. a. mw., 1:95 Pp; ™: 

This is where we change right here and we will say at 
7 o’clock a mM. and 4:30 Pp. M. now. 

The VO0th, 1:9 a. mi, 1.8 Pp. Mm. The 21st, 22. a, m.; 1585 
Beem. The 22d, 2.05 4. mu., 2~/ um The 230,21 4. u., 1.79 
p.M. The 24th, 2.4. m.,1.85 p.m. The 20th, 2.-a. m., 1.9 
P.M. The 26th, 2.05 a. w., 1.95 p.m. The 27th, 2. a.m., 
Porm. The 28th, 2.4. mio1-7 Pp. wm (he 29th, 1.9 a. 
M., 1.60 P.M. The 30th, 1.9 4a. u., 1.85 p.m. The 31st, 2. 

4086 a. M., 1.95 P. Mm. 

When I use the expression 1.95 Pp, m. it means one foot 
and ninety-five hundredths of a foot in the afternoon. 
That gauge is nailed to a telegraph pole. It stands on 
the southwest corner of Brannan’s Bridge. The tele- 
graph pole is in the water. 


4087 Cross-Examination by Mr. O’Conor. 


4088 My age is 40. I have lived in Joliet about eight years. 
During that eight years my occupaton has been watching 
on the I. & M. ©. Company. I watch the bank. I started 
to work for the Sanitary District in March, 1908. I have 
been reading the gauge for the District at Brannan’s 
Bridge on the southwest side of the river. It is about 
two miles from the court house in Joliet, west. It is not 

4089 located right in the city. It spans the Desplaines River 
and the drainage. There are three spans in Brannan’s 


884 


4090 Bridge. JI should judge about 450 to 475 feet long. I 
‘wouldn’t swear how wide the stream is at that point, — 
about 300, 350, 400 feet, I couldn’t tell you. This tele- 
graph pole is on the southwest corner of the bridge. It 
was an old telegraph pole, in the water there. There is 
about two feet of water there now or three feet. That is 
right along the edge of the stream. I couldn’t tell how 

4091 much it is out in the center. JI never measured it. I 
couldn’t tell you. It might be two feet, three feet; I 

4092 don’t know, four feet or five, I couldn’t tell you. I take 
the gauge readings only on the board. I don’t know who 
put the board on the telegraph pole on the southwest cor- 
ner of Brannan’s bridge. There was a board there be- 
fore; somebody else had put the board there. ‘These 
pages that I used as a memorandum, that is the original. 
It put it down there first and then I copied the card every 
Saturday afternoon. After I copied the card I mailed it 
to Mr. Heilbron at Chillicothe. I just cut those pages out 

4093 of the book. I looked at the gauge first and then go back 
home and note it in the book. My home is about five or 
six blocks from the bridge. JI would go down there and 
read the gauge and then go back home and put it down 
in the book and I have been doing that since 1908. On 
page 19 I used these figures in testifying. I didn’t use 

4094 November. It is all out of the book. I have it all from 
1908 somewhere. I have got the others here somewhere 

4095 in my book. On that mornng, September Ist, when I 
went there at 6 o’clock there was 1.5. When I got back 

4096 that afternoon at 6 o’clock it was 1.9. There was a half 
a foot difference between six o’clock in the morning and 
six o’clock in the evening of September 1st. On the even- 
ing of September 13th there was only 1.65 of a foot of 
water. On the morning of the 14th it was 2.05 of a foot. 
On the night of September 19th at 6 o’clock there was 
1.85 of a foot. In the morning at 6 o’clock there was 3.15 


585 


of a foot. On the 20th of September there was 1.7 of a 
foot at 6 o’clock in the morning. At 6 o’clock that same 
evening there was 2.1 feet. On the 21st of September in 

4098 the morning there was 1.5 feet. In the evening there 
was 2. feet. There was a difference of six inches. 


4099 Re-direct Examination by Mr. Chiperfield. 


I read the gauge for the Sanitary District. I don’t 
work for them in any other way. That is my full employ- 
ment for the Sanitary District. I work for the I. & M. C. 
I have been taking those gauges from that time down to 
this. 


4100 Crartes HorescH, a witness called by the defendant, tes- 
tified as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Charles Hoesch. I reside in Peru, Illinois. 

I have been in the saloon business for a while. I have 
been a coal miner at one time. It is 11 years since I have 
been a coal miner. I worked in the mines of the La Salle 
County Carbon Coal Company. I know the third vein of 
coal to a certain extent. JI know the method of long wall 
mining. Ccal is removed in long wall mining by under- 
4101 mining the coal. Ordinarily the coal taken out varies 
from six inches to two or three or four feet, according 
to the way the coal breaks. In the place where I worked, 
between 12 and 18 inches was taken away. Then the coal 
is removed. By taking the coal away from under the roof 
the roof naturally settles and it breaks before you can 
take her away most of the time. Props are put under 
the roof. When the weight comes down sometimes they 
break and sometimes they don’t with the weight. The 
distance that the roof comes down depends on just what 


886 


4102 weight is on top of it. It settles from 16 to 18 inches 
in the course of time. The dirt that is taken out in under- 
mining is naturally throwed backwards into the empty 
spaces. As the roof comes down it would naturally 
squeeze together. Sometimes it settles quick and then 
again the bottom raises up and covers so that you can’t 
tell which way it settles. As far as I have seen the thick- 
ness of the dirt, when the roof and the bottom are to- 
gether, 1s 18 or 20 inches; 12 to 18 inches of the dirt is 

4103 taken ont. Sometimes you don’t take no dirt out at all 
when you mine the coal. Ordinarily you take out as 
much as I said before. That is thrown back. It stands 
there just as it was thrown out until the roof starts to 
come down and when the roof starts to come down in time 

4104 it is squeezed together. T have seen the entries. After 
they have driven an entry and after the work moves for- 
ward it is necessary to brush it out; you have to take 
down some rock. I haven’t any observation of it myself, 
not exactly. They take off 10 to 12 inches, and then they 
have to take off more afterwards. They take off after- 

4105 wards 10 or 14 inches. It 1s according to the entries, if 
they have te take off any more as it settles. Afterwards 
they take off about the same. I can’t tell you whether 
they take off any more than 24 to 28 inches. According 
to the way the roof settles, sometimes it is stationary 
for a long time and then the bottom raises or the roof 
squeezes down. They have to take off more than 18 to 
20 inches in the brushing of the roof. I can’t tell you 
how much more. 


4106 Cross-Exanunation by Mr. Butters. 


In my estimation the distance up that the earth is af- 
fected by the coming together of the roof and the floor 
depends upon the slate. There is a slate roof over there 
and from there soapstone up to the roof and that settles, 


887 


and further up to the sandstone, and how far up that is, I 

couldn’t tell you. The break is according to the progress 

of the mine. I couldn’t tell you whether it is ever more 

than fifty or sixty feet above. As the particles break 

loose it takes more to fill, more space. As it breaks it 
4107 takes a different formation. 


Re-direct Examination by Mr. Chiperfield. 


I didn’t see any illustration that it occupies more space 
as the weight comes down from above. The rock packs 
again, crosses each other. The roof comes down and it 
comes down because there is some tremendous weight 
above pressing it down. 


4108 Witi1am Miter, a witness called by the defendant, tes- 
tified as follows: 


Direct Examination by Mr. Chiperfield. 


My name is William Miller. I reside in Peru. At pres- 
ent my business is that of a painter. I have been engaged 
in the business of mining. I have been a miner 26 years. 
I have worked in the shafts of the La Salle County Car- 
bon Coal Company. I know the third vein of coal that is 
mined in those shafts. That coal 1s mined by the long 
wall system of mining. In the long wall system of min- 
ing you get the coal out by undermining it and then it 

4109 breaks from the top. The amount they have to under- 
mine it depends on how the weight comes. They gener- 
ally undermine it a foot or two or probably three feet 
and then the coal has got to be wedged down. The vein 
of coal is from a foot to three feet thick. If they need it 
they put props in them. The roof settles down after the 
coal is taken out. The roof comes down to the packing. 

Q. Does it at any time squeeze or press that packing 
together? <A. Yes, sir. 


888 


4110 It comes down until everything that is packed under it 
gets into a solid mass. I have known the roof to come 
down probably 20 feet. From the top to the bottom I 
mean, 20 feet. If these props are not taken out they 
break. I have observed the entries and roadways of the 
mines. After the work has advanced it is necessary to 
brush these entries. In the course of four or five years, 
as the work advances, they take off probably three or 

4111 four feet. It depends on what direction it is. Ordina- 
rily it is three or four feet. They don’t brush that off 
all at once. They brush it just the way it settles down. 
The idea of brushing is to keep the road high enough to 
take the coal out. 


Cross-Examination by Mr. O’Conor. 


I live in Peru. I am 44 years old. I have lived in 
Peru over 30 vears. The last work I done for the la 
Salle County Carbon Coal Company was a little over two 

4112 years ago. J sav that I have noticed the effect from the 
roof coming down, coming up into the earth 20 feet; that 
is right in front. Living in Peru for the last 30 years I 
have been over the streets a good deal and up and down 
the hills there. 

(. Have you ever noticed any effect down in the City 
of Peru, anywhere, either on top of the bluff or below the 
bluff, or any part of the bluff, cement sidewalks, paving, 
street car tracks or anywhere else, or in any of the build- 
ings, on the surface of the earth from the mining of the 
eoal in that region? 

Objected to by the defendant as not proper cross- 
examination. 

The Court: T think J will let him answer. 

Defendant excepts. 
4113. A. Yes, sir 


a 


889 


I have seen it down on Water street in a building in 
Peru. It ain’t occupied now. It is empty. Used to be a 
saloon in there kept by a fellow named Mackey. I don’t 
know how it came to affect that one building particularly. 
I don’t knew what did that. I haven’t noticed any effect 
on the paving in Peru. I haven’t noticed any effect on 
the cement sidewalks. I haven’t noticed any effect on 
the street car tracks. 


4114 Re-direct Examination by Mr. Chiperfeld. 


In that building I seen the front settled down on it, 

eracked. I know where Split Rock is located. I have 

4115 been down to the river. From the river towards the town 

there is a big ledge of rock. I don’t know that it is 70 or 

80 feet in thickness. Where the Rock Island Railroad is 

at La Salle there is still a high ledge of rock above the 

top of that railroad station. That ledge of rock isn’t 
found down on the bottom at all. 


Re-cross Examination by Mr. O’Conor. 


I have noticed at Split Rock the dip that it takes down 
into the earth. It is down beneath that that we find the 
coal. I think the coal peters out in there. 


4116 Re-direct Examination by Mr, Chiperfield. 


There is a layer of sand rock above the slate and the 

slate is right above the soapstone, and the coal is right 
4117 under the soapstone. The soapstone is the roof. Of 
that soapstone there was at least from three to four feet. 


Re-re-cross Examination by Mr. O’Conor. 


Above the coal we find the soapstone. The coal lies 
right next to the soapstone and then the next strata is 
slate and then we come to the soapstone. 


89U 


4118 Further Re-direct Examination by Mr. Cliperfield. 


The slate is different. I have seen it as thick as one, 
two or three feet. 


4119 Juttus Mossspacu, a witness called by the defendant, 
testified as follows: 


Direct Examination by Mr, Chiperfield. 


My name is Julius Mossbach. I reside in Peru. My 
business has been in the lumber yard, May’s Lumber 
Yard. I have been engaged in the lumber business since 

4120 1858. Why naturally I would observe the high water 
in the Llinois River. I did. Before the Sanitary Dis- 
trict was opened in 1900 I observed lots of high water 
there. Well, generally it would come up in the spring 
and there was off years it would come up during the 
summer; different ways. If it is a kind of a wet season 
we had it would bring the river up. In 15 years before 
the Sanitary District was opened I did note the high 
water on the river. I observed just as high water as 

4121 I ever had. The water came up into my lumber yard. 
I fell in there one time, about up to here, in the yard. 
I fell in between two rafts. When the high water came 
up we had the lumber lying down there, a couple of boat 
loads of lumber and the high water came up and floated 
them all off and we went up as far as where the ice 
works is now and I had to boom it to keep it in. I was 
in there after it and I went down with it one Sunday. I 
had two rafts and the first thing that happened I was in 
it, away up on high ground; no bottom. That was just 
where the office of the coal shaft stands, about two rods 
west. There was a bottom there but it was not in my 

4122 reach. It didn’t do-me much good. The place where I 
went down is about three rods north of Water street, 


891 


north; up close to the Rock Island track. That is where 

I went in. I had a raft there keeping it in the water. 

It filled up, took it up there; after the water went out 

we piled it up again. I know where a certain culvert 

in Peru is located. That was after the ice came in 
there and I had to run for my life there. It drove me 
back; big cakes of ice that went up on this side and on 

the other side and I tried to hold some of the ice back 
below and I had to run because it flopped over. This 
4123 culvert is there yet. It is on Water street. It is about 
five rods this side of the office. I know where that row 

of stone and brick buildings is in Water street in Peru, 
those buildings that face Water street. I know where 

the entrances and door and thresholds of those build- 
ings are. There hasn’t been any change in the level of 
those doors and thresholds but in the road. I think the 
4124 road is about two feet higher. That culvert is there 
yet on the level of Water street. I know section 21 
right across from Peru. I have observed the ice on 
section 21. Section 21 was all covered many times. I 
have observed it before the Sanitary District was opened, 
within 15 years before the Sanitary District was opened, 
4125 I have observed the ice going across section 21. Right 
here is the bend (illustrating on map) in through here. 

It comes up through here, the bend. The river makes 

a big bend and comes down by Shippingsport and then 
strikes the bottom below this point and runs right over 
into Peru.. When the ice came it went through here 
~with a boom and struck right over here in this slough, 
MecCormick’s slough. It came across the land. It eut off 

the top of a big elm tree in here. It must be 14 feet 
above the ground where the ice had eut that tree off. 
4126 That was located south from there, near the Waugh 
farm. On the map there is Water street (indicating). 

It is close to 14 feet, above the ground. <A big elm tree 


892 


and that was done in the ice of 1858. In 1858 that was 

4127 done, but you could see it 15 years afterwards. I saw 
the people who farmed that land. They husked corn 
right below it on the other side of the slough with skiffs. 
I saw them up there with skiffs. I couldn’t see any- 
thing there but right across from Peru, below there, 
that round piece in there, why I saw them husking corn 
and they did husk corn in skiffs. There is a bridge in 
the Peru road where it crosses the Huse slough. There 
is a road across there containing a bridge. I know of 

4128 their constructing work with reference to that bridge 
for the purpose of protecting it from the ice that came 
across the land. Some years ago we had to go over 
there when the bridge company was there, and May was 
one of the company and Huse and others and we went 
over there one time and we put in big elm trees, so 
if the ice should come above the bridge it would slide up 
on them and save the bridge. I have seen it over these 
bottoms 10 feet deep for that matter. I ain’t seen no 
boats in the bottoms; I haven’t. This water was about 
10 feet deep when the ice goes; that is generally when 
the ice goes out. We rafted the lumber and held it there 
until the water got away and then we separated it. We 

4129 put cedar poles around it, the boom that we put around 
it was cedar poles; cedar poles and then lashed them 
together right there in Water street. Why one Sunday 
morning we went down there and I had to get $75 worth 
of ropes to hold the boom and bring the rope clear up 
t the Rock Island to bold them. 


Cross-Examination by Mr. O’Conor. 


4130 [I am 78 years old. Yes, Il am going back to 1858. The 
ice | speak of was there in 1858 and the year the tree 
was cut. J don’t remember when we had the last high 
water in Peru. High water comes there now. I don’t 


893 


think it is anything different than it used to be. I can’t 
4131 tell the year, but I remember one year in the month 
of May, it may have been 1892, yes, I think we had tre- 
mendous high water in 1883. The year we lost the lum- 
ber was before that. We didn’t lose any lumber, we 
ketched it. I never kept any track of the years. It 1s 
a few years before 1880. I have been with the Mays 
4132 ever since I started. I think it was around 1876 when 
the high water affected the lumber. I think that section 
21 is the piece of land there in the lower bottom. I 
didn’t try to buy any of the land there before 1900 but 
4133 Mr. May did; 100 acres. I didn’t put any value on this 
land but May told me if we could buy that land over 
there it would probably be worth something. That was 
the time there was some good crops on there, three 
years succeeding, good crops. I don’t remember what 
vear that was. That land was all in corn at that time. 
4134 Mr. May had rented that and we put some stock down 
there and we put some fences in there to keep the cattle 
in. We put on temporary fences. It was not necessary 
to take them down, when the water came, it took them 
along. J had a few acres myself planted in there. I 
don’t remember the year. It was considered good corn 
land; raised good crops. When the water kept away it 
was good. We had a big crop of corn down there. Yes, 
we could get good corn there when the water kept away. 


Re-direct Examination by Mr. Chiperfield. 


We figured upon getting four or five years out of ten 
upon that land. I had a friend down there working 
and I helped him financially and he had at least two 
years when he was drowned out. He came to me and 
said, ‘‘Give me a hundred dollars and I will try it again.’’ 
I said, ‘‘You better not try it any more.’’ Well, he 
went on and he failed again; he lost everything he put 


894 


in. That was three years straight and after that three 
years, the fourth year he got a good crop again. 


Re-cross Examination by Mr. O’Conor. 


I remember the crops that were raised on this land 
in 1893. Just as quick as the Chicago lumber ceased 
and we had nothing more to do in the river with sorting 
and piling of lumber, down at the water’s edge, why I 
had no further interest in it. I didn’t care whether the 

4136 bottoms were up or down. I paid no attention to it. Mr. 
Waugh pastured some cattle on that piece. I don’t know 
anything about that. I have not farmed any of that 
land in the last thirty years. I don’t know what was 
raised on it between 1890 and 1902. I was where I could 
see the crops. Some nice corn over there and I have 
seen some poor corn. Some nice corn generally when 
they had no water and the crop would not get wet. It 

4137 would run all the way from 70 to 80 bushels of corn. 
I think the story of their getting 100 bushels to an acre 
is all talk. When you get 60 to 80 bushels of corn 
you can be satisfied. That is a big yield. Sometimes 
they got 60 to 80 bushels; sometimes they didn’t. There 
is pieces over there, that is high pieces, where they got 
good corn; very seldom that the ice is over there. Sec- 
tion 21 is as good land as you could find anywhere in 
the neighborhood. 


Re-re-direct Examination by Mr. Chiperfield. 


I have no recollection of any cattle being drowned 

there by high waters coming up on the bottoms. I re- 

4138 member of them having to take cattle out of there. They 

put fences there temporarily. We had a bridge across 

there. That land was always regarded as a gamble, 
whether you could get a crop out of it or not. 


895 


4139 Joun J. Miter, a witness called by the defendant, tes- 
tified as folows: 


Direct Examination by Mr. Chiperfield. 


My name is John J. Miller. I reside at Peru, Illinois. 

I have been stationary engineer for a good many years; 
also superintendent of the water light plant; four years 
street superintendent. I am now employed at a place 
ealled the American Hlectrie Light Company. I was for- 
merly employed by the Heins Lumber Company. I started 

to work for them in 1873 and continued until about 1900. 
The mill was moved from the south side of what we 
eall Water street to the north side and then about 300 
feet to the east, in 1887, in the fall of the year. After 
4140 we moved the mill we had some very high water in 
the ’80’s, in the late ’80’s. The first high water I re- 
member was in 1892. That was very high. At the place 
where the mill is now it did not damage it any there. 
One time they had an overflow before we moved. That 
was prior to 1887; I couldn’t state exactly the year; it 
was in the ’80’s. It came almost up to our grates in 

the boilers. They were perhaps something like two feet 

or two and a half lower than the level of the street. 
4141 The boilers were in the south side of the building. The 
building was standing on the south side of Water street, 
practically overhanging the river. I would judge it was 

22 or 24 feet above the level of the river in low water. 

I haven’t the exact measurements. The water at that 
time was in the cellars along Water street, across the 
street. The thresholds of the stores and doors and cellars 

in those old buildings stand today just as they were at 
that time. The level of Water street has not been changed 

at all; not to my knowledge. There may have been a 
4142 trifle when they brick the road. The thresholds and 


896 


doors and cellars of the buildings, with one or two ex- 
ceptions, are just the same as they were then. I re- 
member the current of the Illinois River before the Sani- 
tary District waters were turned into the valley. I 
eouldn’t make any statement of how much at low water 
but there wasn’t hardly any. Many times we. had a 
green scum over there and it stayed for weeks in the 
summer. There was very little current. Since the Sani- 
tary District water went in there there is a difference 
in the current. I couldn’t answer exactly, but it has a 
4143 pretty fair current there now. There is a little differ- 
ence in the stage of the river in low water now than 
from what it was then. It is a litle higher in low water. 
We had marks on the stones and on those buildings. I 
don’t think it was a foot. I think it was between six 
inches and a foot.: I know Henry Meyers, the bridge 
tender. I know the bottom, lands immediately in the 
vicinity of his place over there. I have seen them every 
day for forty years. Henry Meyers, in the last two or 
three years, has raised garden truck over there; all kinds 
of small stuff to sell; bring it around peddling it around 
places. I guess it made a pretty fair crop, so far as I 
know. I know the lands of the La Salle County Carbon 
Coal Company across the Illinois River in section 21 
4144 and also east and west of the Illinois Central Railroad. 
I am acquainted and have an opinion as to the value of 
the Jands mentioned, shortly after the Sanitary District 
was opened. Lands were sold right there for $45. I 
4145 never was in the land business and I didn’t buy any. I 
should say that that land was worth in the neighborhood 
of $45 to $50. I know of transfers that were made in 
that neighborhood. I know of a sale to McCaleb from 
Mr. McCormick. The land was located just south of Water 
street, Just where the road bends to the southwest. There 
was a portion of it lying on the west side of the other 


897 


portion to the southeast, across the river road. It was 
close to this land. The sale was made, I should judge, 
along about 1896 or 1897. To the best of my knowledge 
I worked close to the man who bought it; I think it 

4146 was $45 per acre. I know of the sale of the Huse & 
Loomis land to Ernat Brothers. The Huse & Loomis 
Company had a representative there who used to live in 
Peru. His name was Herman Bent. He came up and 
made the deal. We were neighbors and friends. He 
lived in the same place I did and he came up and made 
a deal. To the best of my knowledge it was about 1899 
to 1901; along in there somewhere. There was some- 
thing like 250 acres and the consideration was in the 
neighborhood of $45 per acre. I understood from him 
that the coal was not sold at that time but was included 

4147 in the sale. The Ernats bought the coal along with 
the land. They afterwards sold the coal. 


Jross-Examination by Mr. O’Conor. 


I think the Sanitary District water was turned in about 

1900. I couldn’t tell you how many acres are in section 

21 lying south and west of the river and east of McCor- 
4148 mick’s slough. I know where section 21 is located. I 
don’t know how much was in cultivation in the year 1900. 
That would have nothing to do with my placing a value 

on the land. I was figuring on all of it. There was 
some of it that was poor, slough, and so forth. I don’t 
know how much of it was under cultivation. I know 
they raised corn there. I saw Mr. Waugh when he 
was farming it. He had it rented out many times. The 
4149 transactions on the land were made in that neighbor- 
hood and about that time. In making my estimate I cer- 
tainly included the coal, only some of it was not sold. 
4150 I don’t know what they paid for the coal in the year 
1900. I think that the coal was valued something like 


898 


$12 or $15 up to $20 an acre. I didn’t hear of any one 
giving $75 an acre for coal about the year 1900. I don’t 
know anything about the value of coal in the year 1900, 
not taking the coal alone. I didn’t hear what the peo- 
ple were getting for it. I understood they were getting 
4151 from $15 to $25 per acre. That is what it was sold for 
at that time, so far as I know. In placing a valuation 
upon the surface of the land, in the neighborhood of $35 
or $40 an acre, I didn’t keep the dates but it was in 
the neighborhood of 1900, a year or so before and a 
year or a short time afterwards, the land was worth, 
4152 the surface was worth in the neighborhood of $25 to $35 
an acre. I knew the condition of the land from the 
year 1893 down to the year 1901. I don’t know who was 
farming it during that period. I don’t know how many 
acres were in crop. I know that some of the years 
they raised good corn there. I know of my own knowl- 
edge and I was over the ground during some of thosé 
4153 years. I didn’t farm any of it during those years; 
never farmed any of it in my life. I don’t know how 
much that land would run in bushels. If the water didn’t 
catch it it was good corn land. I remember the high 
water of 1892. The bottoms were flooded that year. I 
remember the high waters of 1883. I think that was be- 
fore we moved our business. Those two years stand out 
prominently as years of high water. A good many acres 
of it was in cultivation during the years 1883 down 
to 1892; | don’t know the number of acres; never farmed 
any bottoms anywhere; never had any experience in 
farming bottom lands; never farmed any land anywhere. 
TI owned some land. I own some land today. I own some 
4154 land in Nebraska. I never owned any land in Illinois. 
IT had in mind, in placing my valuation, the use that the 
land could be put to. It could be used the same as before 
if the water didn’t—I had in mind to raise corn whenever 


899 


4155 the water didn’t get them. That is what I had in mind 
at that time. I didn’t particularly consider the land as 
desirable or didn’t think of it for truck gardening pur- 
poses. They might have raised cabbages and carrots 
and spinach and lettuce. They could have raised some 
millet. I guess they could have raised cow peas. I don’t 
know what it would have been worth for that purpose. 

4156 I didn’t pay any attention to the land any more than I 
know about these other sales. That 1s what I base my 
judgment on. I don’t know how many acres were in 
McCormick’s piece. McCormick had quite a tract there. 
It was divided by the river. That is further down west. 
Some of the McCormick land was lower than section 21. 
The Braun place was considered as good as the Waugh 

4157 place. I think they farmed their land together. I never 
bought or sold any bottom lands myself. I took into 
consideration, in fixing the valuation, the productivity of 
the land, what the land produces. I answered in view 
of what I knew from the time I started to work up there. 

4158 I have seen where they planted the corn many times 
in the spring and then again in June, when it was up 
perhaps a foot high and in a day or two the water was 
over it. Sometimes they went to work and replanted 
it again and then it was a failure. Those years I am 
speaking of was exactly before 1900. There was one 
year, it was in 1898, that year I remember. 1898, yes, I 
remember that year. A flood came when the corn was up 
quite high and in 24 hours afterwards no one could get 
in with a plow. If I had money I would not invest it 
in no bottom land. I don’t know exactly when the Sani- 
tary water was turned in but I think it was in 1898. The 
water came up on the land in the summer or in the 

4159 spring, after the planting of the corn. I remember 
Mr. Waugh’s farm was rented out, and Braun’s. There - 
were quite a few of the teamsters farming in there. I 


900 


don’t know whether Ed Pyka was in there. I don’t know 
whether Joe Greiner was in there that year: Some of 
them farmed that land. If they replanted it in 1898 they 
might have got some good corn yet in some of the higher 
4160 places. I remember the year 1898 when the corn was 
that high and they couldn’t get in. It might have been 
replanted and they got some off of the high land; that 
might have been. I don’t remember exactly how it was 
in 1897. I can’t say for sure about them years but there 
was several times; yes, sir, a good many times. I remem- 
ber the year 1892. I told you about the high water in 
1893. J couldn’t answer you that question as to whether 
' the erop planted in the years 1893, 1894, 1895, 1896 and 
4161 1897 was disturbed at all. The crop was lost in the 
flood of 1883. Several times between the year 1883 down 
to the year 1892 the water came up on the land and af- 
fected the crops. I couldn’t mention just what years. I 
should judge every fourth year, or something like that. 

Q. Does the water come up there today as much as it 
did before? A. Yes. 

Q. Not much difference though, is there? A. Oh, I 
don’t know, there is some, perhaps. 

There is a couple of places there that they don’t farm 
as much later years as they did before. The low places, 
of course, it might have been a little more. There are 
low spots in that piece; pieces that are not as high as 
others. It is not uniform in height. I told you before I 
don’t know how much of it is not planted today that was 

4163 planted before 1900. I don’t know if it is a fact that not 
half as much is planted today as was before 1900. It 
may be. In the last eight or nine years some mighty 
good corn was raised there; I have seen some of it, yes. 
I haven’t seen any of it this year. I saw some of it 
last year that was mighty good; when they hauled some 
across the bridge. Maybe the water did get up on the 


901 


land in some places last year in September and flooded 
the crop; it might have been on some places, I don’t 
know. I didn’t see it there in 1911. I told you where 
4164 I lived before. I didn’t change my place; was where 
I could see the river every day. I have no recollection 
as to the time the water came up and covered section 
21 last year. I couldn’t tell you what time it was last 
year that I met a wagon of mighty good corn coming 
across the Peru bridge. I don’t know whether it was 
4165 in October or November. I don’t know what the condi- 
tion of the weather was at that time. Do you think I[ 
know all them people that drive wagons? I don’t know 
the name of the driver of that wagon. I don’t know 
whether it is any of your business whether I was rid- 
4166 ing or walking or what I was doing. Maybe I was sit- 
ting down. I did answer that question. I told you I 
was down on Water street and saw them come across 
there. Now, was I walking or standing still or driving, 
I don’t know that that makes any difference to 
you. I didn’t meet the wagon on the bridge. I 
told you I saw the wagon coming across the bridge. I 
was east of the bridge when I met the wagon. The 
4167 man drove east. I don’t know who the man was. There 
are some cribs located west of the road on Water street. 
They were not hauling that corn to the cribs. I was on 
the sidewalk at the time I met the corn. The wagon 
4168 was on the street going east; that is what I told you. 
To be sure I stopped when I seen the wagon; stand- 
ing there watching them drive east. To be sure I could 
see the corn in the wagon from the sidewalk. It was 
4169 just a common box wagon with a top on. I don’t know 
about what the height of a double wagon box is. To be 
sure the corn was up above the top. I know the color 
4170 of the corn. The color was like any other corn we bring 
4171 in at that time of the year. It was like any other corn 


902 


4172 they bring out of the bottoms. J told you it was like 
any other corn they bring out of the bottoms, any other 
corn they haul in there. It was yellow. 


Cuunton D. Sargeant, a witness called by the defendant, 
testified as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Clinton D. Sargeant. I reside in Utica. I 
work for the Utica Farmers’ Klevator Company at the 
present time. I own a farm in Waltham township. I 
know of the drainage operations in Waltham and Wallace 
townships. ‘Those drainage operations are a drainage 
ditch about six miles long, the main chanel. It is sup- 
posed to be six-foot bottom and twelve-foot top, but we 
don’t run that way according to the grade. According 
to the grade, vou know, the ditch is in some places ten 
feet deep and some places six. There must be about 
3,000 acres in there. It discharges into the Pecum- 
Sauggam Creek. I can’t tell you just exactly the sec- 
tion. It empties back seven miles from the river. The 

4174 Peceumsauggam creek empties into the Illinois River. 
Yes, I know the drainage district that drains into Indian 
or Buck creek. That is known as the Freedom Drainage 
Ditch. I don’t know how much land is drained by that. 
Previous to the draining of this territory in Waltham 
and Wallace townships the land was swampy, practic- 
ally, swamps, and since it is the finest in the country. 
Our land was sold out on the 20th of September, 1899. 
It is upland, well improved, ves, sir. My business has 
been farming. J have been engaged in the oovernment 
service, in the capacity of railway mail service clerk. I 

4175 am now supervisor of Utica Township. I know the land 
across from Peru and La Salle, east of the Peru road 
and east and west of the Illinois Central right of way 


903 


elaimed by the La Salle County Carbon Coal Company. 
I know them, yes, sir. In my judgment and opinion 
that land, just before January 17, 1900, was worth from 
$30 to $50. ) 


Cross-Examimation by Mr, Butters. 


4176 The basis for estimating the value of land is improve- 
ments, and so forth. The productivity has something 
to do with it. The question of fertilizing has not en- 
tered into the question with farmers until the last few 
years. It has something to do with it. Those drainage 
districts were in Wallace and Waltham Townships. It 
was finished about 1900; it was started out 1886 and fin- 
ished later. I wouldn’t be positive as to whether it 
opened into the Peccumsauggam creek in 1896, in the 
spring. Yes, I know something about it. I hauled the 
stuff away from it. I had a contract to haul the dredge 
to Utica. I wouldn’t say positively that was the spring 

4177 of 1896. It was along about 1900 it was finished; from 
1896 to 1900 it was finished. It took them quite a while 
to put that through. They commenced down at the bot- 
tom end, what we eall the Probst farm. The overflow 
always did go into the Peccumsauggam creek. That is 
the only outlet it had. I am familiar with the land on 
either side of the Illinois Central, on section 23, to the 
extent of being over it and seeing it. IJ used to haul 
brick off of some of it. I have seen something growing 
on it before 1900. I have seen it when there wasn’t a 

4178 good crop on it between 1893 and 1900. I can’t say to 
give positive years, but we used to figure four crops out 
of five: four crops out of five. It is commonly under- 
stood by those who are familiar with bottom lands, if they 
get four crops out of five, it will produce more than up- 

4179 land. That is what I have heard. Yes, that is what 


904 


we have always been led to understand. I don’t know 
how much that land has been running an acre. No, sir, I 
never saw any corn come off that land. I don’t know 
anything about it. Yes, sir, I have farmed bottom lands 
further up east; worked on it. I would not change my 
opinion whatever, if this land, from the year 1893 down, 
to the year 1900 produced nine consecutive crops aver- 
aging from 50 to 60 bushels an acre; simply because it 
is never considered sure. Yes, the uplands, that is tile 
drained, there is a partial failure there once about every 
eight or nine years; that is all true. Yes, you run a 
4180 chance, certainly. I am not prejudiced against bottom 
lands so that I would deprive them of their value. Up- 
land was worth in 1900 about $75. No, I am not getting 
that low. Ours sold on the 20th for $75 to $/7.50se8 
4181 don’t know that lots of lands, farms, in this country, 
were sold for $100 or thereabouts, from $90 to $100 in 
the year 1898. I don’t know that. I say that it is the 
fact and ours was sold at auction. Yes, ours was a pub- 
lic sale and that is why I base my opinion on that. I 
should say it was worth only $30 to $50 because there is 
no improvement on it and you can’t keep a fence or any- 
thing else on it. I consider improvement on a farm of 
some value. I took into consideration the fact you are 
never required to seed it down with clover or use other 
4182 fertilizer. You have got to have somebody work there 
that depends on something else for a living. I am aware 
of the fact that building sites ean be had in close proxim- 
ity to this land in the City of Peru. I discount it that 
way. It is simply my notion of it, my opinion, yes, sir. 
T base my opinion on the risk. I discount it on the risk 
and the value of improvements and so forth. The ex- 
treme productiveness of the land is an unknown quantity. 


905 


4183 Owen McDermott, a witness called by the defendant, 
testified as follows: 


Direct Examination by Mr. Chiperfild. 


My name is Owen McDermott. I reside on Ninth street, 

La Salle. My business has been teaming for the last 

25 years. I know Charles Dooley. He is farming Carbon 
Coal Company land north of La Salle. He is farming. 

I guess he gets a share. I have known the bottoms down 

on the Ilinois River about as long as I can remember. 
4184 My age is 68 years. I know a man by the name of 
Clark and Rockwell. I think they were ‘the first that 
broke it up. That is east of the Central bridge. I was 
away from here for twelve vears during the ’70’s, up to 
"1882, and from 1870 to 1882, I was at Livingston, so I 
couldn’t tell what the high water was on the Illinois River 
during that time. I returned in 1882 and since that time 

I have lived right over there in La Salle. I have had 

an opportunity since I came back to observe the high 
waters of the Illinois River and the bottoms across the 
river don’t overflow quite as quick as they do on this 
side. I didn’t observe the bottoms over there a great 
deal. My work never took me over there. I have been 
4185 acquainted with them for a considerable time. TI don’t 
really know what they are valued at since, but in the ’60’s 
they were selling at from $30 to $35. Well, I couldn’t 

tell what they are worth since. I couldn’t tell you what 
4186 they have been worth since. T couldn’t tell you the value 
of these lands just before 1900. I can’t express an opin- 
ion, not to say what they were worth. TI never heard of 

but one piece heing sold down on the bottoms. I wouldn’t 

say it was since 1900; one piece sold there. I couldn’t say 
4186 as I have an opinion as to the market value of this land 
just before 1900. I know of the land being overflowed 


906 


from time to time. In 1882 I think they were overflowed. 
The rise came on very sudden, I think. In the fall they 
were overflowed and some corn was taken away in the 
fall of 1882 and there was some of it under water in 
June. I think the last two or three years they have been 
under water pretty late in the spring. The last two or 
three years have been pretty wet years. There was 

4187 some of it pretty wet for a while. Taking into con- 
sideration all I know or have seen and observed about 
these lands I should say they were worth about $35, be- 
fore 1900. 


Cross-Examimation by Mr. O’Conor. 


It was in 1862, maybe in 1863, along in there, that 
this land was worth from $30 to $35 an acre. It was. 
my opinion they were worth $30 to $35 an acre in 1862. 
That is about 40 years before 1900. They might have in- 
creased a little in value during that 40 years. I think 
they have decreased lately, in the last eight or nine 
years. In 1860 or 1862 it was worth from $30 to $35 
4188 an acre. I couldn’t say that it increased in value any 
after the year 1900. That particular land hasn’t in- 
creased in value. There is no improvements down there, 
you know, to raise the value. I wouldn’t think the land 
4189 itself went up in value. There is some pretty good crops 
some years; very good. I had 15 or 20 acres on it along 
about 1900. That was the only time from about 1873 
until 1900 that I ever farmed any on it. I ecouldn’t say 
as I do really know the number of acres that were actu- 
ally in cultivation on any of these pieces owned by the 
La Salle County Carbon Coal Company from the year 
1895 down to the year 1900. I don’t just recall where 
their land is. They owned some up east of the Central. 
That is about all I know of their land except what is 
4190 down by Peru. 


907 


Mr. O’Conor: Q. (Referring to the map.) Can you 
see this from there? 
A. No, I can’t see very well without glasses. 
I don’t know how many acres there were under cul- 
tivation along by the Illinois Central and further east. 
4191 I couldn’t tell about how much they had down west 
of the Central bridge and south of the river. I wasn’t 
acquainted with this land down south of Peru. I had 
no acquaintance with that at all. I couldn’t tell you 
nothing about.the land on the south side there. No, not 
how many acres they have or what it will produce. I 
have been over there once in a while. I have been along 
4192 the railroad there. I simply observed it casually; $30 
to $35 was a fair opinion of what it was worth in 1860 
or 1862. It is not excessive. It is not low. It is about 
right. The value of the land did not go up in the 38 
years down to the year 1900. The price of that land 
4193 stayed just where it was. They used to raise some very 
fine corn crops. I raised some pretty fine corn crops 
on there. I didn’t have in mind at the time I placed my 
valuation upon this land, in the year 1900, that it was a 
corn raising proposition. I didn’t consider it near as 
good as it was in 1860. It was not as productive. It 
seemed as if it was getting wore out or something. It 
didn’t raise as good crops. It is getting pretty foul. Tt 
4194 has been that way now for 25 years or more; bottom 
lands. T don’t know anything abéut the coal now. T 
didn’t place a valuation on this particular land that you 
pointed out there to me. I didn’t take no interest in it. 
IT made no reference at all and had no knowledge in 
relation to section 21 south of Pern. T know about where 
the land is that Waugh used to farm. I have never been 
on the place. I did help the fellows there one year, Cos- 
4195 grove and Parsons. I didn’t have that land in mind 
at the time IT made my answer. 


908 


Re-direct Examination by Mr. Chiperfield. 


In fixing my valuation on this land of the La Salle 
County Carbon Coal Company across the river, I had ref- 
erence to the land that is off to the east; that land is 
a little lower, I think, than the land over by the river. 
I couldn’t tell as to the value of the land that I helped 
to plow shortly before 1900. I never paid any attention 
to it. 


JoHn WatTMAN, a witness called by the defendant, tes- 
tified as follows: 


Direct Examination by Mr. Chiperfield. 


My name is John Wattman. I reside in Ottawa. I am 

a farmer and in the real estate business to some extent. 
4197 I have been engaged in the real estate business six or 
seven years. My age is 44. [I am an owner of land in 
La Salle County. My land is located in Dayton Town- 
ship, also in Ottawa Township. I know about a drain- 
age ditch emptying into Buck Creek. I know the ditches 
to a certain extent. The ditch in Freedom, it was opened 
between two and three miles long. The ditch was con- 
structed about three years ago, I think. Several sections 
of land are drained by that ditch. It empties into Buck 
Creek. Buek Creek empties into the Fox River. I know 
4198 about the use of tile in that section, in the section empty- 
ing into that ditch. I couldn’t say positively what size 
it was but between 14 and 18-inch tile in different 
branches. I know about other ditches that empty into 
the same channel, Buck Creek. There is another ditch, 
a larger ditch, in Wallace, that also comes into the same 
creek. I couldn’t say how much that drains. That is a 
larger territory and larger ditch. I am generally ac- 
quainted throughout this land. I know where the lands 


909 


of the La Salle County Carbon Coal Company are lo- 
cated across the river from Peru and La Salle. I recently 
made an examination of those lands. I have resided in 

4199 this county about 26 or 27 vears. I have an opinion 
as to what was the fair cash market value of those lands 
shortly before 1900. In my opinion they were worth 
about $40 an acre. I have an opinion as to the value 
of those lands at the present time. In my judgment they 
would be worth anyhow $100. I know the Huse slough. 
I have examined it somewhat, yes. I know about the lia- 
bility of Huse’s slough to saturate the land that hes 
close to it. That kind of helps to make the land wet 
around there. 


4200 Cross-Exammation by Mr. Butters. 


I had reference to the big slough here (indicating on 
the map). That is the one I have in mind. I first had 
my attention called to this land about three weeks ago. 

4201 I had seen it before. About twenty years ago. I didn’t 
look at it for the purpose of finding out what it was 
worth years ago. I was on the land three weeks ago. 
T eouldn’t say what day of the month it was. I was there 
twice. The first time I didn’t spend very much time on 
it. I didn’t go over it the first time; just went to it. 
The second time, I should judge, I spent a couple of 
hours. When I saw it years ago, as I said, I was just 
traveling along on the railroad, the Rock Island road. 

4202 I am sure I saw it from the Rock Island road. I am 
not mistaken when I say I saw it from the Rock Island 
road. I have seen that road for the last 15 or 20 years; 
the bottom lands. When I placed my valuation on that 
land at $40 an acre, in 1900, I assumed that the land was 
practically in the same condition it is now. I don’t see 

4203 much change in the condition of the land in regard to 
water conditions. I didn’t look at this land at any time 


910 


before three weeks ago for the purpose of determining 
the market value. I did not assume this land was bet- 
4204 ter in 1900 than it is now, when I say it was worth $40 
an acre. It would be worth as much in 1885, in my esti- 
mation. J am not taking into consideration the fluctua- 
tion of the market value of the land. There has been 
an appreciation from 50 to 75 per cent. on the uplands, 
' 4205 since 1900. There wasn’t any farm worth $150 an acre 
at that time. There are some lands selling for close to 
$300 now. As far as I can remember the highest price 
that was paid was around about $90, in 1900. There has 
been more of an increase than 75 to 100 per cent. Well, 
with the exceptions it has been 200 per cent. I just 
4206 took a general average. I don’t know as I took into 
consideration that before 1900, from the year 1893 down 
to 1900, that it raised from 60 to 80 bushels to an acre. 
If that is so, that all this land is colored here, colored 
red or pink, in the portions three, two, five and four on 
this map, exhibit 281, if it raised from 60 bushels to the 
acre during the years 1893, 1894, 1895, 1896, 1897, 1898, 
1899 and 1900, it would be worth more. I don’t think 
it would be worth $100 an acre. If it produced that 
amount of crops it would be worth $90 in 1900. I econ- 
4207 sider that land is quick soil. In going over the country 
and looking for farms I take into consideration their 
fertilitv. A farm that is sterile and washed out will not 
bring as much as one that has good black loam. Build- 
ings are a minor and secondary consideration; it depends 
somewhat. You can put the soil on a farm too, now. 
4208 It is more expensive to take a sterile farm that is foul 
and sterile, a clay soil, and fertilize it, than to put build- 
ings on it. 


911 


Re-direct Examination by Mr. Chiperfield. 


It is true that land commenced to appreciate some few 
years ago. That appreciation commenced along about 
1897 or 1898. It is true that before that time land was 
substantially at a level price, with few acres changing 
hands. I don’t know of any land in La Salle County 
that sold as high as for $75 an acre in 1897 or 1898. 
The appreciation has been steady and continuous ever 
since that time. I took the general average of all that 

4309 land, to which Mr. Butters referred. I did not, when 
I set the price of $40 there, I didn’t say for just the 
cultivated land. I meant the whole tract. My idea of 
the value would be affected by the fact that you could 
never raise any annual pasture on this land. My idea 
of the value would be affected by the fact you could have 
no buildings on this land. My idea of the value would 
be affected by the fact that you could never even have 
a well on the land. My idea of the value would be 
affected by the fact you couldn’t even have as much as 

4210 a pig sty on the land. I don’t think fences could be 
erected on this land. That would have something to do 
with lessening the value. When I spoke of the $90 land, 
I took into consideration that this land was not subject 
to overflow. If, from the evidence, this land was subject 
to overflow, that would then affect my notion of the value. 
It was taken into consideration the location of all of 
this land that I have mentioned, that caused me to fix 
the price at $35 to $40 an acre. 


Re-cross Examination by ‘Mr. Butters. 


In fixing the value at $100 an acre now, I don’t mean 
that each acre would be worth $100 of the land that is not 
in corn this year. I am speaking about the land that 
would raise that much corn, as I understood you. I said . 


912 


4211 it was probably worth $100 an acre now. ‘That was an 
estimate. J didn’t say I would pay that for it, but I 
think probably it would bring it. If it was all as good 
as that is in corn this year and was all of that character 
and bore good crops in 1900, my answer would be dif- 
ferent from what I gave it, $35 to $40 an acre. 


4913 VeRNE BATCHELLER, a witness called by the defendant, 
testified as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Verne Batcheller. I reside in Peru. My 
business is farming and dairy. I conduct a dairy farm. 
My farm is located two and a half miles northwest of 
Peru. In feeding my dairy I use ensilage. I have about 
35 head of cows. I have 2 silos; one is 12 by 30 and one 
is 14 by 40. I have raised some corn down there on the 
bottom lands off and on. I know the kind of corn that is 

4214 used for silage. When the ears begin to harden you use 
this corn. In my judgment and opinion there can be 
raised on this bottom land ensilage corn between the 20th 
day of June and the middle of October, to a sufficient 
stage of development to be fed for silo corn; just as good 
corn as any for silo. 


Cross-Examination by Mr. O’Conor. 


I farm about 20 acres; some of it is rented land. All 
together, I have a farm of about 100 acres. I put about 
4215 40 acres of that 100 acres into. corn. I have about as 
much as I can get into the silos. Sometimes, if it is 
heavy corn, it won’t go into the silos. I have two silos; 

the smaller is 12 by 30; 12 feet in diameter by 30 feet 
high. The larger is 14 by 40. The smaller one is of 
wood staves and the larger one of concrete staves. It 


913 


eost me $300 to build the smaller one and the larger one 
cost about $400. They claim the small one will hold 90 

4916 tons. It won’t hold that much. I put about five acres 
in it last year. The larger one has a supposed capacity 
of 120 ton. I have filled it. I filled the both of them with 
about 16 acres. We put 16 acres of corn into the two 
silos. That would make about 11 acres in the larger one. 
Well, they put up larger ones. I have seen larger ones 
in this neighborhood. I expect to feed about thirty cows 
until the grass comes, about the middle of May. Once in 
a while I feed them mature corn. 


4917 I raise that myself. I could let the corn go on and 
mature and husk it. I could let some of the corn I 
raise now mature and husk it and put it in cribs. The 
eorn I put in the silos, I could let that mature. The corn 
I put in the silos I cut that at an early stage, before it 
matures. If I didn’t have the silos I could let that go 
on and mature. A little less than half of my 40 acres of 

4218 corn I put into silos. I farm a little on the bottom 
lands. I have been down there farming this year. I 
have seen the land that Waugh used to farm. I should 
say they cut some of the crop that was raised there this 
year for the silos. Well, Tiernann lives there. I think 
that is the Waugh farm. I have not been on the land 

4219 you indicate on the map this year. I don’t know any- 
thing about the kind of corn that was raised on that land 
this year. You would have to have a good many silos 
to contain all the corn raised on that land. I don’t 
know just where that land involved in this litigation is. 
I was not down there this summer for the purpose of 
seeing any land that is south of the river, to the south 
of La Salle. I don’t know anything about the crops that 
have been raised on that land in the past ten years. I 
don’t know how much it was in acreage. I don’t know 
whether there is any corn there at all or not. JI never no- 


914 


4220 ticed. You can put immature corn into the silos. We 


planted the corn all together, the 40-acre piece. I could 
mature it all, if I wanted to, but since I am in the dairy 
business and want to feed. some of it to my 30 cows lL 
cut some of it and put it into the silos before it matures. 


Re-direct Examination by Mr. Chiperfield. 


I have no idea that any man who is farming a piece 
of ground would raise it all for the purpose of silage 
eorn. He would diversify his crop. 


4221 Re-cross Exanunation by Mr. O’Conor. 


If he had a large farm he would plant some oats if it 
would grow oats; put some in corn and put some in oats 
and some in wheat. 


Re-direct Examination by Mr. Chiperfield. 


He might not want any oats and would raise millet and 
other variety of crops; that might be, too. 


Re-re-cross Examination by Mr. O’Conor. 


And he probably could raise cabbage and cow peas and 
carrots, if he was in the farming business, for his own 
use. 


Re-re-direct Examination by Mr. Chiperfield. 


Land that can be divided up and put to market garden- 
ing purposes and successfully raise all kind of vegetables 
is good valuable land. 


915 


4293 W. A. Croster, a witness called by the defendant, testi- 
fied as follows: 


Direct Examination by Mr. Chiperfield. 


My name is W. A. Crosier. I live in Utica Township. 

Lam a farmer and dairyman. I am engaged in the dairy 
business in a small way. I have nine cows for mulk- 
ing. I don’t know as I know Mr. Batcheller, who just 
left the witness stand. I use the silo. We generally 

eut corn for the silo as it is just hardening; after it 
passes the milk stage; from the 15th of September until 
4223 the 5th of October. Silage corn can be raised between 
the 20th of June and the 15th of October, in an ordinary 
year. ‘The silage is good to feed to anything that I ever 

fed it to—cattle, horses, hogs and chickens. We did 
raise some millet in that vicinity. I live in the southwest 
quarter of Section 1, Utica Township. The latest I ever 
planted millet was something between the 4th and 10th 

of July; got a nice crop. It takes between that and the 
4225 Ist of October to mature. It went about two and a 
half tons to the acre, I think; about three tons. That is 
good to feed the cattle. You don’t want to let the seed 

get ripe, not perfectly ripe. If it is cut before the seed 
forms they feed it to horses. I have had experience in 

the raising of sweet corn. I think that was in ’97, the 
time the hail storm went through. I planted it after the 
hail storm. It was after the 4th of July. Yes, sir, I got 

a nice crop. It went into the silo. Sweet corn makes 
good silage. Up to 19 years ago I lived two and a half 
miles northwest of Utica, two miles northwest of Utica. 
4226 Well, that is four miles from La Salle. We done most 
of our trading in La Salle. My father lived down at 
Granville. I passed the Peru bridge. I know where the 

Q. bridge is built. I know where the Illinois Central 


916 


bridge is built. I have a knowledge of farm lands in the 
vicinity of La Salle, a general knowledge. I know where 
the La Salle County Carbon Coal Company land is locat- 
ed right there by the Illinois Central. I don’t know 

4227 just exactly where the boundary lines are. I know the 
general location of those lands. The land would be worth 
about $35 to $40 an acre, something like that, as an in-~ 
vestment, shortly before 1900. JI never had any experi- 
ence in the raising of cow peas or soy beans. I never 
fed neither one of those. I have had experience in the 
raising of kaffir corn 12 or 13 years ago. I didn’t raise 
it myself but I seen some of my neighbors have some. 
They claim that makes a good silage crop. I didn’t see 

4228 it myself when it came out. I have lived in La Salle 
County 47 years. The ensilage corn would make about 
one-third more food value from an acre, by putting it 
into a silo, than from the other way. I never fed any 
millet. 


Cross-Examination by Mr. O’Conor. 


The land that is owned by the La Salle County Carbon 
Coal Company that I know about is right near the Illinois 
Central bridge, right under it, along through there was 
where I have always understood their land was. I 
ecouldn’t tell you how many acres there was in there. It 
was on the north side of the river, away from the Lli- 
4230 nois River to the bluff. That is the land I know 
about there. I did not testify to land about which I had 
no knowledge. That is the land I know about. I have 
testified before in cases of the Sanitary District; not 
more than once. I never assisted in getting witnesses to 
testify. I done no work along that line at all. I live 
about three miles right straight down from the river. I 
have been to Granville since I went to see my grand- 
father. I cannot answer that question as to how long 
it is since I have been to Granville. I have been there 


917 


4231 since ten years; about seven or eight years. Gran- 
ville lies southeast of Peru. I don’t know just where in 
reference to Spring Valley. In going to Granville you 
eross the bridge at Peru. I noticed all the land. I al- 
ways do that. Yes, that is a part of my business; always 
look for what is going on in the country. That is the 

4232 way we learn. It is the way most people ought to learn. 
I noticed the land on the west side of the road. I could 
see that from the highway. I saw the land on the east 
side of the road. I didn’t notice a slough on the west 
side of the road. It is good farm land. There isn’t a 
slough right close to Peru, but there is when you get up 
further, about a mile and a half out there, or very close 
to it, I think. Yes, I mean about a mile and a half from 
the bridge across the river at Peru. There was corn 
standing there on the east side, as I remember. I can’t 

4235 remember everything for eight years. I always take 
particular notice of everything I go over. I was taking 
notice. I have crossed that Shippingsport bridge prob- 
ably two or three times during my life. It has been 
longer than 16 years, I think, since I have been across 
the Shippingsport bridge the last time. During the past 
16 years I have no knowledge as to the number of acres 
that were being farmed south of the Illinois River and 

4234 east of the Shippingsport bridge. I don’t know the 
number of bushels per acre they have raised. I have 
no knowledge whatever on the subject. I can place a 
valuation only on bottom land that overflows, such land 
as I know about. The crop raised on this land would 
cut any figure with me in the placing of valuation. The 
number of acres that would be put into crop in certain 
places continuously would cut a figure. It would make 
a difference if I had to plant it irregularly and in spots, 

4235 rather than in one big field. The difficulty of getting 
in and getting implements down there on the ground and 


918 


working there would cut a figure. The fact I would have 
to fertilize the ground or might have to fertilize it would 
eut a figure. These things would all have to be consid- 
ered, in placing my value which was $35 to $40. I said 
somewhere from $35 to $40 as an investment. I mean 
4236 by what it would pay interest on. Any land ought to 
pay five per cent. interest. Five per cent. interest on 
50 or five per cent. interest on $100 are two different 
things. In figuring my valuation I figured it as an in- 
vestment proposition. Five per cent. on $100 is not as 
4237 much as five per cent. on $50. The land where I fixed 
the value at $35 to $40 an acre, I would expect to get 
£1.75 to $2.00 an acre. The land that is worth $40 an 
acre, I would expect to get $2.00 off of that. If I was 
getting off the land a revenue or income that was equal 
to five per cent. on $100, I would consider it $100 land. 
If I was getting a revenue off the land that amounted to 
$10 an acre, I would consider it $200 land. That is the 
way I fixed the valuation. I don’t know what the in- 
come was that was produced from this land here at any 
time, lying south of the river and east of the Shippings- 
4238 port bridge, within the past 16 years. I don’t know 
the income that was ever produced off of it in dollars and 
cents, only as a general thing on the bottoms. I don’t 
know in dollars and cents what this land, which lies to 
the east of the highway along which I drove to Granville 
produced. I have an opinion as to what it produced. My 
notion is this, that land in there is all overflow land. 
The land throughout the bottoms is now being rented 
for $2.00 an acre at any time, and take your chances 
on getting a crop. I know it, not from personal experi- 
ence, but from general knowledge of what a man learns 
in coming in contact with these people. I don’t know 
49239 just how many crops were raised on this land lying 
south of Peru from ’93 down to 1900. JI don’t know the 


919 


number of acres that were in corn. I don’t know the 
number of bushels per acre it raised. I don’t know how 
much the corn sold for. That same condition exists as 
to this land that lies south of the river and east of the 
Shippingsport bridge. No, I am not living north of 
Peru now. You go up on the brewery hill road just 
five miles north of Ottawa, or six. Nineteen years ago 
we lived in Utica Township, northwest of Utica. I am 
living in Utica Township now. I eall it five miles from 
the City of Ottawa, five miles and a half. Some call it 
five miles and some says six. I go straight west from 
4240 the Rock Island Railroad to my place. I only put in 
six acres of corn in my silo yet. I generally put in about 
eight or nine, according to how much stock I have got. 
My silo holds 157 tons. That is located on the land. I 
don’t think you could let the corn that would be planted 
for the purpose of putting into a silo go on and mature; 
not if I wanted to, because I use corn that would not 
mature and if it did mature I don’t think I would have 
any sale for it, generally. Most usually when I can it 
I use the Brazilian flour corn. If I planted the ordinary 
4241 corn, such as is usually planted around here. I could let 
it mature if I wanted to. I have got a special brand of 
corn and plant it for my silo. This year I have put some 
of the other crop into the silo. I feed all my young stock. 
4249 That silo would feed about 30 head during the winter— 
30, maybe. I never heard of the coal land there and know 
nothing of its value. They generally pay about $12. 


920 


4244 Junttan Dyckman, a witness called by the defendant, 
testified as follows: 


Direct Examination by Mr. Chiperfield. 


- My name is Julian Dyckman. [I reside at Peru, Hh- 
nois. I am section foreman for the Rock Island Rail- 
road. I have been with that road about 18 years. I 
run for about a mile west through Peru and about a 
mile east of La Salle. I know where the Rockwell mine 
4245 of the La Salle County Carbon Coal Company is located. 
We had some cases of sinking of the roadbed in that vi- 
cinity. There was a sag in the track; probably a thou- 
sand feet east of the mine. It settled on an average 
about twelve inches ina year. The sinking has been go- 
ing on for the past 15 or 16 years. There is no grade on 
the road there. The road is built along the hillside. 
That is the only place in particular where sinking has 
occurred. The place is some three or four hundred feet 
long. There is a place west of Peru about three miles 
where we have another ease of track settling and settling 
4246 of a stone culvert there. They have settled at that 
point about fourteen inches. The sinking seems to move 
east until the last year or two and since then it has not 
moved. About 14 years ago it was 3,000 feet west, I 
should judge, from where it is now. It has extended 
towards the east that distance in that length of time. We 
had to put in filling over that entire surface. It takes 
about two or three hundred feet and requires filling at 
the time and then it keeps moving along; about two or 
three hundred feet in a year. From the time that the 
4247 track commences to settle until it finally comes to rest, 
we have to raise it and fill it in and then the next year it 
will have settled again about 12 inches and it is good 
again for about another year. We have to repeat the 


921 


process each year; haven’t noticed any in the last two 
or three years; not to speak of; not more than two or 
three inches. The settling seems to have stopped and 
the ground seems to be at rest now. 


4248 (Cross-examination waived.) 


WiuuraAm WatTz.LeEr, a witness called by the defendant, tes- 
tified as follows: 


Direct Examination by Mr. Chiperfield. 


My name is William Watzler. I reside in Peru, Illi- 
nois. I am section foreman for the C. R. I. & P. Rail 
road. I have been section foreman for the past six years. 
My section starts a mile out east of La Salle, and goes 

4249 a mile west of Utica. I have seen sinking in the Rock 
Island tracks in the vicinity of the La Salle County Car- 
bon Coal Company’s mine; it 1s about 600 feet east of 
the Rockwell shaft. I think the place of sinking was 
about 300 feet long. It would sink an inch or an inch 

4250 and a half at a time; twice in a season. That has been 
kept up for three or four seasons. It has sunk about 
eight inches all told. It would not remain in the same 
locality. It would show about 300 feet in length at a 
time. It would take about two months before it would be 

4251 noticeable again after it was fixed. About every two 
months for about three years it would require repairing. 
It would sink about six to nine inches in a year; for 
about three years; sinking would be from 18 to 27 inches. 


(Cross-examination waived.) 


922 


ALEXANDER THIEMAN, a witness called by the defendant, 
testified as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Alexander Thieman; I reside south of 

4252 Peru on the Waugh farm, adjoining Section 21. T'wenty- 
eight is my section. My business is farming. I know 
where the La Salle County Carbon Coal Company’s lands, 
which they claim they own, are located in Section 21. 

I don’t know the lands located west of the track, the 
Illinois Central track. I know the land which lies west 
4253 of the Ulinois Central and between that and the river. 
I know the land which hes east to the north of the coal 
dump and east and west of the C., B. & Q. right of way 
and north of the switch track, where their land is located. 

I am engaged in farming and selling milk; in the dairy 
business. I have been acquainted with Section 21 about 

25 years. 1 howed corn there for Waugh. They have 
lost crops there once in a while over there on that land. 

* 4254 I have known before 1900 that there was soft corn 
grown on that land and harvested there. Generally all 

the low land would produce soft corn. I know that of my 
own personal knowledge. The western part of that land 

is low land. There was some timber on this piece of 
Section 21 before 1900; the southwest corner there is 
about 40 acres. I don’t know exactly how much of the 
376-acre piece they had in corn, before 1900. My best 
4255 judgment would be that there was about 75 to 80 acres 
of that land that never has been in cultivation, of the . 

La Salle County Carbon Coal Company’s land. On Sec- 
tion 21, on the southwest corner, it is all in stumps now 
where the timber has been cut off. There is a patch of 
timber in the southeast corner of that land now. I know 
Mud Lake. Sometimes it is called McCormick’s slough. 


923 


It runs into MeCormick’s slough and into the river by 
May’s lumber yard. I know the ground was planted on 
4256 this Section 21 in 1911. About 300 acres were planted. 
They had a good crop. My land adjoins it. My land 
kind of slopes from the hillside, but still I have lower 
land than they have on theirs. I have about eight acres 
of bottom land that is lower than their land. During the 
last five years I have farmed this bottom land of mine 
4257 which adjoins Section 21. (Indicating on the map.) 
Here is Cedar Creek. Here is the slough. I raised corn 
right there on the low land and this year I have put 
4258 sugar cane and millet in there. I raised regular prairie 
eorn, white corn. I got a good crop. I have used my 
corn for ensilage; used it last year and also this year, 
but at the same time it would have made hard corn; put 
in lots of it into ensilage this year. J have raised millet 
on this same land. You can put millet in in August and 
get a fair crop uf you get the weather. I planted sugar 
eane there. You can plant sugar cane the last of July 
or first part of August. I use sugar cane for cattle 
4259 feed—cows. Just cut it down, dry it and put itup. You 
cut it when it is pretty high, three or four feet; gener- 
ally get one crop. I know about the corn that was raised 
on this land by Shang Cosgrove. I know where that corn 
was raised last year. It was raised right east of mine 
on Section 21. Cosgrove lost some of his corn. It must 
have been some time in November. He didn’t make a 
4299 very hard effort to get it. I offered him assistance. 
That land has been used for a crop this year. Shang 
Cosgrove farmed it again. I know about Brannen hav- 
ing corn planted in there. J have seen some of it. There 
was some of it that was a little soft. Some of it was 
4261 fair corn. Some of it would grade all right, I think. I 
should judge there is about 200 acres planted in corn 
this year. I know Cedar Creek. It comes from up above 


924 © 


the hills there, from away up around Cedar Point. I 
was out in the country Sunday and saw it five miles 
back. In high water times it is a very heavy stream. It 
discharges into the slough, west of the slough bridge, into 
4962 MeCormick’s slough. There is a sandbar being formed 
there; gravel filled in by the creek. There is willows 
there and trees, willows and brush get in there in the 
spring of the year and settle there. The wash comes 
then from the creek. .During low water it holds the 
slough up to a certain extent. I was down there once 
this summer and it looked to me about a foot or two feet 
that it held the water up there; the upper side of the 
slough. It is a pretty big slough. I should say 120 to 
130 rods long. The widest part is about 40 or 50 rods, I 
4262 guess. Brannen planted some spring wheat on part 
of this land; put that in last spring a year ago. The 
weeds got ahead of it and he didn’t get nothing out of it. 
He planted some oats there a year ago this spring. The 
same thing happened to them. All the seed didn’t come 
up. He got in there early enough to plant spring wheat 
and to plant oats. Waugh cut some timber out there 
three years ago. I couldn’t exactly say how much be- 
cause they cut lots of timber there this year. They cut 
some of it off for props. They have been cutting off this 
4264 last year yet. I don’t know exactly how much. The stumps 
were left there when Waugh cut the timber off. That 
land where the timber was cut had never been cultivated — 
yet. Some fellows from town worked an acre or two in 
between the stumps once in a while, but the land gener- 
ally has not been cultivated. I observed this land both 
before 1900 and since 1900, and I don’t notice any dif- 
ference in the general cropping condition of this land 
since 1900 than it was before 1900. I haven’t paid much 
attention to the last crops. I have noticed that they 
would lose a crop once in a while. My father used to 


925 


farm some of this land on the bottoms. All of the land 
4265 in Section 21 is not exactly on the same level. There 
is parts of Section 21 where they did not plant any this 
year. It is on the lowest spots, on the west side. There 
is a low place there. They tried to drain a part of the 
surface of this land last year by opening ditches. It was 
a diteh about five feet wide and about three or four feet 
deep to drain the slough. With the exception of that 
slough there has been no other attempt made to drain the 
surface of this land. When the water is down in the 
river in the summer time, I would judge it is about five 
feet below the surface of this land. There has been no 
attempt, as far as I know, to drain this land into the 
4266 river when the water was low. In my judgment, of the 
375 acres in Section 21, south of the river, I should judge 
there is about 100 acres that has never been cultivated 
at any time, around the edges and in the sloughs, wet 
places, timber and in waste land. I have an opinion as 
to the fair cash market value of this land shortly before 
1900. JI think it was probably worth $100 an acre. I 
4267 include the coal in that. The land was worth probably 
_ 4268 for agricultural purposes about $75. I think that shortly 
after 1900, after the Sanitary District water was turned 
in, and, at the present time, that the land would be worth 
$75, or the same amount for agricultural purposes; the 
same as it was before. My idea is it was worth the same. 
I feed my ensilage corn to the cattle. It makes good 
green food in the winter, the same as krout. It agrees 
4269 with the stock very well. They do well on it. The sugar 
eane that I planted, I let it lay until it dries. The weather 
cures it some; just as you would hay. We stack it up 
the same as hay in stacks. It will keep probably a cou- 
ple of years. I haven’t ever kept it that long. I never 
have enough to keep that long. It will keep as well as 
hay. I regard cane as better than hay, better than timo- 


926: 2 


thy hay, for feeding purposes. It is about the same as 
clover hay. I have noticed the current of the Illinois 
River before 1900; I have also noticed it since 1900. 
There is a little more current now than there was then. 
I eouldn’t say what is the difference. It is some faster. 
That is all I have been noticing. It seems to float things 
faster. I can’t exactly tell how fast. I can’t give a bet- 
ter estimate. 


Cross-Examination by Mr. O’Conor. 


This land was worth $75 at any time before 1900. It 

was worth that much in 1898; hasn’t changed much in 

4271 several years. I think it would be worth the same to- 

day. I think that taking the coal land it is worth $25 an 
acre. 


4273-74-79 House Document. 


au 


WATERWAY, LOCKPORT TO ST. LOUIS, ETC. 189° 


Discharge measurements of Illinois and Des Plaines rivers. 


ILLINOIS RIVER AT MORRIS, ILL. 


(Survey of Illinois and Des Plaines rivers, 1899-1900. The gauge readings refer to gauge at the high- 
way bridge. Elev ation of zero=486.01, Memphis datum. } 

















Mean | Dis- | 
Area of | Maxi- — 
Date, |. G8U8e | cross | mum | Width.| Vee: ca Status of Witete vin. 
reading. section.jaenth ity per) per river. 
‘| ey second. . Sec ond. 
SS Pe Ra POS 
1900. | Feet. |Sq.feet.| Feet. | Feet. | Feet. | Cu. ft. 
May 3 SUR (co Re ene =. 1.26 | 4,264 Falling..... Light upstream wind, 
Apr. 29 Me © ee lannnsn clang nseeh® 1.41} 4,850 |..... (10 |. Senn 
May 2 ot i SRE Pee 1.44 5, eo ye ee 
Apr. 80 O00) S788 fish ulesncnane 1.67! 6,322 | Rising ...... 
May 5 SS Oa eee eee 1.60 6,109) Falling, 
May 2 BNE 17, O99 be exc te cdiccaaeee 1.47| 5, 664 | estat 7 eae ‘| Strong upstream wind. 
Apr. 30 4.304 BOGE Ye aor Ree > 1.78 | 7,213 | Rising ...... . 
May 4 ae ye LIS fis np Pare aes | ye ie hs ea ee a 
Do... et OW OTe eran Poe mel i, Be oO 2 ee rae 
May 1 2.647? 14,1991. aie, 1.88 | 7,684 ]..... poe 
Apr. 28 S| Pe Sk ae fvae wa ome 1.98 9,200) Stationary.. 
Apr. 27 SEs o. B A480 (leks imdb one 2.08 9,636 | Falling ..... 
Apr. 26 5. 64 | Ye... Seay Reena 2.13 | Ue «> 2 GOi<...ane Very windy. 











NotTe.—All measurements were taken from the highway bridge with a large Price current meter. 











Ay Ge anti Ae 
oun: 














od ty Ja a eties oF iby? yi ithe rye ak ide: mas 
Sake! was de eatery of oily? epreitioce eyed it LON) RS airy Derg tine 
aie abag AVM OME ORONO tS te) Mee ln. | See 
ete A ’ “ 
= an =" aa; a” «bie Re: Paka rp: nally yoevad <aphods py ing os heats —— a 
: Pi 4 ‘ ets “#4 ; 
. > a “At 2 
1. ee , : iv rir 4 : 2 wt ie 5 aK, aks: P : 7 
weet »* why of sry | Cx tri. a? tl ty bait o t un ciate +s 7 
. oe tw ad ‘ ; a ’ hes i MaaE, Fe | AYERS HE - ey Prey 
aan! ee } t Tiel Gogh. 4s iy oa 
: a “Af aars ras ’ Pee, 
hy ; ¥ a0 
Sk hee ene. a + woe en oo) ; 
, ; a> 
Td . agit oa y $ 
: (ys } 
“tw & ' SIXES S walle & ok tua 
; : 7 
y : ‘A 
~ 4 i ; cg a ; 
‘ , be no ? ( : 
; : | | 
5 n i ¢ 4 iy 
Pi . 4 Ocak \ 
‘ tots 2 pay ' ms ae 
Fc Aa . 6 
~ ‘ ms. ‘ M iS , ; 
tei ; ‘ 4 
“ ; 
ua ; 4 ; 
/ boys 2 
; ; ie Abs, Yi 
4 + ‘ , eh : 5 
a 4 , 
. . oat batten ¢ - P< . oeytt w(t) swee? gee aled sty ay sarc 2 is fi hy NOR 











a aa aut isa ‘scien ta 





190 WATERWAY, LOCKPORT TO ST. LOUIS, ETC. 


Discharge measurements of Illinois and Des Plaines rivers—Continued. 


ILLINOIS RIVER AT MORRIS, ILL.—Continued. 





charge was over bottom. 


: Mean | Dis- 
Areaof | Maxi- : 
Date. eons cross | mum | Width. veloc: | charge Status of Remarks. 
reading. |. ction.| depth ity per| per river. 
; at second. ‘second. 
[" : 
1892. | Feet. |Sq..feet.| Feet. | Feet.| Feet. " Cu. ft. 
May 10 See Wee fe oh wne clwagkaab Bee DE AGEs lenkwadaden sone 
DO. <s 5 SS 8. Ree oe ee “78 | ALE Viseundehoo sues 
IS Se eh a Preenre LT POE Lekinenaccceanss 23 eubie feet of total dis- 
2 i re c charge was over bottom. 
Oss) MOD | -O,BB7 |... 222 ofc cacenns a ete 27 cubic feet of total . dis- 
; . & charge was over bottom. 
Do...) -.10.06.; 9,583 |.......}. OES: Se BO) 52 cubic feet of total dis. 
ta . charge was over bottom. 
etal) (eee BL OEP Tenceisbcseeuasl.  & OL) 28, O29 |}... .-s00 -----| 58 cubic feet of total dis- 
. a ae | charge was over bottom. 
May 9 ERGO 1-30, TOG hace ck) caets. OE” MO | CIT IME Mctiwewewweess 113 cubic feet of total dis- 
; “, a | charge was over bottom. 
ach)! SEER eh 2, SOP lantetedaeedcces! 2.98 | OO fa 122 cubie feet of total dis- 
) charge was ovcr bottom. 
Pe OE ge BO ee ee w-| 804 AsO xanivewenneu ce 128 eubie feet of total dis- 
fan charge was over bottom. 
Do...| 11.68 | 10,555 |..,....].. Whe. 3.07 | TRE oc, 148 cubic feet of total dis- 
i ee ie , charge was over bottom. 
July 38 ey See 2 Saas Tech Dead REO aso cact Sse r ens ; 
May 9 | 911.90 | 10,768 |.......|..... SE es | ee 158 cubic feet of total dis- 
A . ety F charge was Over bottom. - 
July 8 12.05 | 10,278 |:......].. eee Ae Md ee ne 
DG ant RBI Wa csennelceceus>s eee NA 
July 4 oA LE 4 ee ee DA TRIOLOUY Selenite e xo ns 
July 3 pe -£R Le ee Oe. Sc Weare 
‘July 4): 12,90 | 10,861 }.......)..... Pee Ream % 8 eX) 1 py Oem ers ; 
May 9] . 12.82.| 11,085 |.......)........ ' 3.16 | 34,935 |..............]-181 cubic feet of total dis- 
“8a . ; charge was over bottom. 
May 8 pS LD Oe ee SF S41 OG isos eecks cess 773 cubic feet of total dis- 
. ' charge was over. bottom, 
Do...) 34.12 | 12,889 |.......|........ ee eek canis 1,377 cubic feet of total dis- 
Le Ge aa ji , charge was over bottom. 
Do.z.| 14.77 | 12,682 |.:.....|.. eats ae a Oe Es acwikd otic ocak 3,414 cubic feet of total dis- 
bo) oo oa ; a) - charge was over bottom. 
Do...| ~ 16.15 | 13,078 |.......)... dase SE i. Ree ene ,| 4,796 cubie feet of total dis- 
. charge was over bottom. ° 
May 7 BUG 144, 677 j... 0200). 0000s wel » 297 | OO, 304 |e..... oo 16,743 cubic feet of total dis- 
pee ry re, nye } charge was over bottom. 
DOuis 17.76 | 14, 870 eeeecorlerceoseos 8.07 62, 313 eee ceweeseeees Do. 
ge Sk go | RS Sa 5 OG % tee 20,997 cubic feet of total dis- 
~*~ aie Ane . charge was over bottom. 
: May 6 18.56 | 16,449 |.......|.c..000. tO. 1 GPO loovencunceeses -Do. 
' Do...| 19.55 | 16,079 |.......|. ‘eeosseet 38.06 | 73,730 |..............| 24,614 cubic feet of total dis- - 





. . Nore.—Where a discharge over the bottom is shown, the areas and velocities given are for main 
hanne!l only. 


ILLINOIS RIVER NEAR DIVINE, ILL. 


_ [Survey of Illinois and Sia A pe wi ri ers, 1902-1904. The gauge readings refer to gauge on Elgin, 
' _ Joliet and Eastern Railroad bridge. Elevation of zero=587.20, Memphis datum.] 






o wind (taken from cable 


1904, 
- June 15 
about 600 feet below Elgin, 


—94.6 | 4,318 9.8 565 |. 1.23.| 5,300 | Stationary..| N 
. : Joliet. and Eastern Rail- 
road bridge). 
—94.5 | 4,363 / 9.7 575 |. 1.22] 5,804]..... BO uatan Light downstream wind 
- (taken from cable about 
600 feet below Elgin, Jolict 
and Eastern Railroad 
bridge). 
—94.3 | 4,337 9.7 560 1.36 | 5,910 |..... do ......| Light upstream wind (taken 
rom cable about 600 feet 
_below Elgin, Joliet and 
Eastern Railroad bridge). 


NotTe.—Each of the above measurements is the mean of two consecutive measurements. Al! were 
taken with a Price current meter, large size: 


July 23 


July 8: 

















reashee 4 Ag we) crn 


Se ee dl a — ot iin te poi tap ts me Rta NR et wate ere “penn a means se 
g ° ‘ # . 
: J : 
4 





ee alld Bye nee ee. Mii tesa 2 Ae Lee ey 
aa We i dry ‘ , 7 Tag * ee | = 


ek wet lktec taeda t 















f 
a See oe ee er ota a) Poe ae eo et ae enh y ajo wiliten teats 
* « t7° 7 
: A ik! Soabity 
} : we n) $v) . wath Pion oe m3 
ke eC See a, ; 7 is Ae ha 
: ‘ we : Fi hn. Abs? rae ee, ago aH Wee v - ay ho a 
: bo Oest * : ¥ F i ' a a 
t vl +t Og pee ek ath. Ye Aaa oe aes ies A pa 
‘ J i Digee aly ¥ ‘ahs ty 
my ‘ $ e¥ Sa ha) Ss M + + |<" “ 4 bet 4e~ hea: opta", ‘Seong ay, ¥ ie oh 2: PJ 
+ J + F 7 aL? 
a OI Shu 4a : : t “+e ; . 
. A aap “es i 
Wis Y J das recy te t d card oy ** = ro 
7 < 
aa ties ? a Se?’ - ae | 
- 4 w\ qr? 
nee j et avy y as} , . » atte a Ds) aa .¢ fi £\ woh bite: Ad 
as “07 ; . 4 ; 
a ae b nee die he 
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‘ ‘1 Ye Be } ee we het ' oe’ Sara ti tad ose atta 
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4 Ld 9 . ‘outs “ . 7 «? 7 * \ * ve t sere a 
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we Ae : : Sy Mek Pind ahwab cen ntRA, 54 oie wad ae ee 
ar ay : pty" ij é ; : _ 


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ele aS rm Pass : ‘ ' ie 4 
; : Va a 
aiiteaaal aan a het se bet ha eT RSS nee rene i ee en Ba a bead tei me scans COR. epee soy ¢ ? 
a " iad pr ae re a eer | ” tiie ad ; Yap set 
hee! + Sed tee ae Apa ay arbi! Maree Fue ee Se OTe, suid \F aseay ‘th ns 
oe wy ; 
me ot he é ; é ny ; ‘eer 


YO. FRIRE BOM AAT Sarat 








4 a sh < eae me  eieeing 
AERA He chee A eathet anda ake hoe RE MOT? eR tT hit a 2 a Gees 
+ prene ee tee y iz yh Bie wera, PO Saas sie Bi stale if pte I irs iccaadiied oie eae & ‘gia 3 
es. aneret® oF pH ao we inp -sntsinthey e aaa a” a wie oy ; * ee ait sm’ ements mwee ayer a 


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By 


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AIG: he 3 By Bn Serv? 3 a : a SOMES, d a A %.' Be shy one 
% ie ” 3 : ae 
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eee Le Tre, CRA | © ae a ‘ ‘& NM 
(Mets Wit o sleet + 7 } * 


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eli RG ABO BNE 
Meeks: eg Shi Soir Be PR Sep 


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1s stomapirecs abttrseyeals a need sort Beano meee Se pena he ps 
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a 


‘WATERWAY, LOCKPORT TO ST. LOUIS, ETC. 191 


Discharge measurements of Illinois and Des Plaines rivers—Continued. 


ILLINOIS RIVER NEAR DIVINE, ‘ILL. 


(Taken under the direction of the United States Geological Survey. The gauge readings refer to 
gauge on Elgin, Joliet and Eastern Railroad bridge. Elevation of zero=587.20, M ne pa Ps 








| M . 
Areaof Maxi- Mean | Dis- 
Gauge | cros W veloci-| charge! Status of 
Date. ‘reading. eee fhe Width. ty-par| per cam Woketads 
‘| second. second. 








_ 1903. Feet. Sq.ft. Feet. | Feet. | Feet. eu 








Nov. 11 | —#4.15 4,40) ....... Les a eS Oe ee ee 
May 10 | —3.10) 4,898 ....... | 553 1.69 8,39 | Stationary...) Light downstream wind. 
t. 26) —94.10 4,199 \,...... | wed anti he 1,75 | 7,319 | Falling ..... 
Re ah 0 | 4817 |... loca CRUE, DAGON 1a lass wie so y's 
Aug. 31 | —93.99 | 3,556 .......]...... .-| 1.83 7,044 | Falling..... 
July 12| —93.83) 4,556.2... sen. 1.64) 7,406 |.2...do...... 
1904. | | | | 
. May 19 | —93.00. 5,139 | boy aks 565 oh A et) Stn Strong downstream wind. 

1903. | 

Apr. 9 —91.12 6,606 | Kins, eget 594 2.04 | 13,482 | Falling.-..- Do. 
/ 

1904. 

‘May 2 -—9.51 6,454 ....... 560 B06 | LORD hss oe dat sendin, Light downstream wind, 
Apr. 17 | —89.63 6,987 °....... 581 2. 44 | 16, 927 |. cecccccceeses Conditions good. ; 
Apr. 26 | —8.15 7,740 ....... 585 (7 oe SE eee Do. 

1903. es 
Mar. 15 | —86.84 -9,182 ..... as 630 2.80 | 25,689 | Falling.....| Strong downstream wind. 
1904. | | | | | 

eee S| —82.40 | 13,281 |....... 623 3.30 | 37,118 |..............| Conditions good. 
* Mar. 27 | —79.98 12,975 |....... 683 8.85 | 50,920 |...:..........) Riveroverflowed right bank 
) : 1 foot deep for 250 feet; no 
; : current. 
Mar. 26 —78. 47 14, 800 le wkbien's 949 3. 86 57, 097 sadest ct hachadnc| eeeeee 





_ Nore.—Measurements in 1903 were taken from a cable about 40 feet above bridge. Those in 1904 
were taken from the bridge. A1l were taken with a small Price current meter. 














d 7 
? 


; ? ia she , a rei be: 
a is a ae REINS HAE eat aorta 
a a ST " tye cee) Ashi gad a CES Lobe Ry) OES Te ts wit Bish jolie nits abs 


‘ % . c a a “ nt 
Ph portiat hostage AS) CAR usm anlar Bl oe eee ee, Coe eet 


we 


vs ri 74 > 4 
i = < eu a » 
a. ee ee sent hei stpival neat mimi wh Kaplan 2 +! wi pthonny Numalesi en Sel yiiylinn tee iE sre BS WF oh yeaa 
y A re S " 
Bie i er ‘ Qt : i > ‘ 
ae : i ys ; < PRA obs ee hae 1 aad, 
‘3 ¥ fea guald ; sa tach she tante ates eS Cate bert |S . 





- . er ’ 
4 ‘hs ‘Sere, dere 
a 4 2 ; 44x39 7 4 
4 A . r ' 
Shae cayenne meshed dh st rn aes anemia erga eta 
> ‘ 
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i be : - - ‘ vl ‘anti 
é= > oe + bi ye } va ¥ ytd . ae 
be | ee ee ie NS Ee, 
a 4 ” ~ ' ae ‘ a 
. bd sa¢ * = r 7 a? eo 4 all nts le » * “ +e — 4 By t . ns 
\ F: M a7 : 
¢ 5 “s b-" A - , co i? Ge 
ties O27 ee ae nena ef thie 
. . ah oft ao ~ ; 5 ; 
he's é , ye 3 Foe ee gin or ale > he at & a 
é om. | ae 
. arta é 4 at ee Va pe eer ee «eee. 
7 = =: 1 « 
hey: < <*> at 999% " ut H Boye ee Fe me's eee 
tee, pa fd * ; « 7 - a % ’ ~ 
it d urs he a oe rU 3 i ae aa vA Ms dit 
Cie . 7 
ced ; ; : > Ye 
4 . ; - » 
: 7 Wate? an 4 bes Fane ap Ana a fx .§ > ie 9 mt a a 
4 7) a] qe we ken ae | hiv} a ¥ s* ‘ Car R ial a A a oo . . ia A A ave ” 
? 


% > 
% 
aw, * ~ a * , A af ' ’ 4 vo * 
ont Pits opeoveswok iiehy a dK , aaa A. 
“ - ‘ 3 e a , 
tae Be 5 Lae WE. 5 3 wdesin we a Mii § albania’ hi AA 
> 5 = " a pil. vy, ¢ 
ral ow . ) ae Ae 3 cm ie a.) ee ed if a~ 
‘at . 
ra ; ; * 
3 - Lk ¥ t ‘ 
‘ . * Poet a dm ; ae > - 
;, are Louie er fi acaede ft, ie . Yea R. Ut erste tis paid oy eee ee Re 
\ J 
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; re vk due a f Ba 4 } Ape etey : ae h 
< aey : silo wate tase nectullal Paik os EET at eee oS ee? 
, ~ % , Than ee i wee i Beemer 3! i P . a 
. a 5 z >- v ou ph ADS nah. | eae. 4 ; a ed ain oir .% ‘stk eS Eee 
. . : ‘ } 
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; : 


deve be WE « 





ead 


927 


4280 Hrnest M. Cox, a witness called by the defendant, testi- 
fied as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Ernest M. Cox. I reside at Peoria, [lli- 
nois. I am a steamboat man. I have been engaged in 
boating since 1894. I am a master; been licensed by the 
United States government as a master eleven years last 
June. I am familiar with the Lllinois River and have 
been since the spring of 1895. I have sailed the Rein- 

4281 deer, which was the old government boat, state fish com- 
mission boat; the City of Peoria, the Susan, the Beeder, 
the City of Henry and several other small boats. I sailed 
the City of Peoria for eight years; it was an excursion 
boat; I am acquainted with the Illinois River from La 
Salle to its mouth. I have observed its tributaries, the 
streams running into the L[llinois River in the last eight 
or ten years. The rainfall since 1900, from the tribu- 
taries to the Illinois, has been greater than it was before, 

4282 to my recollection. According to my idea, on account 
of the levying of these districts, from one end of the river 
to the other, confining the river to its river bed, makes a 
greater current and thereby a greater stream coming out 
of these tributaries; it is bound to. I haven’t noticed 
any material change or difference in the river after the 
year 1900. I should think not more than 12 or 13 inches. 
I don’t think it would make over a foot of difference at 
low water. I know some of the levees down stream be- 

4283 tween La Salle and the mouth of the river, in a general 
way; know of their being there. The stream is not as 
wide in high water now as it was before the construction 
of these levees. It has confined the river to its bank, the 
side where there is a levee, so they have not the overflow 
where the levees are. Of course, it pushes the water in 


928 


the river bed and causes a bigger current. At the present 
time I should think the current in there was about three 
miles or three miles and a half. I am taking that as an 
average from the source to its mouth. I know previous 

4284 to the drainage going in, previous to the levying dis- 
trict along the river, from one end to the other, we called 
it virtually then dead water. I have observed high wa- 
ters on the river since 795, 794 and ’95, along in there. 
The high waters of the river since 1900 are not as high. 
I have been sailing excursion business exclusively for the 
past six or eight years, on all parts of the river from its 
source to its mouth. There is a fill in the river above the 
dam at Henry and has been for the last six or seven years, 
to my knowledge. The fill, according to my estimation, 
when you get over with your steamboat, running from 
the City of Henry to Hennepin, when you get your boat 
over the dam, your boat will labor and that will show you 
are in shoal water. 


4285 Cross-Examination by Mr. O’Conor. 


The steamboat season is now over. I operated a boat 
on the river this season, the steamer Beeder. She is a 
small tow boat. I think she is 97 feet long; run from 
Peoria to Chillicothe. That is a distance of 92 miles. I 
4286 have operated a buffet in Peoria since May of this year. 
I wouldn’t boat in the winter time. The levees I referred 
to are the levees below Henry. I think by confining the 
river to its natural bed, it makes a swifter current. It 
increased the current in the river. The water travels 
faster that way than it did before. That is on account of 

its being confined to a narrower channel. 
4287 I say that previous to 1900 we had higher water than 
we have had since, outside of 1902. I didn’t say that be- 
fore. That is both in the tributaries and in the main 


929 


stream of the river proper. I say that the rainfall has 
been greater since 1900, I think, than previous to that, 
from my experience. The rainfall has been greater dur- 
4288 ing the past ten years than at any time that I know of. 
I know that during the last ten years the Sanitary Dis- 
trict has turned water into the valley; I don’t know how 
much. I can’t specially give the rainfall. Notwithstand- 
ing the fact that the Sanitary District water is coming 
into the valley, I think I have seen higher water before 
1900 than I have seen since that time. Prior to 1900 I 
have seen the water every year and since then we have a 
better stage of water, as far as that goes, because we have 
had a better body of water for navigation, on account of 
confining the river into its banks. That is the only way 
I can go by. I think that at certain times of the year I 
4289 have seen it higher previous than I have since. I don’t 
remember the high water of 1883. I was not in the neigh- 
borhood at that time. I don’t remember the high water 
of 1892. I think it was in 1895 or ’96 I remember high 
water. I have seen the Illinois River since 1894. I was 
4290 living at Meridosia at that time. That was in the spring 
of the year. I couldn’t.tell you exactly how long it stayed 
up. I think that year it lasted quite a long time, longer 
than usual. I remember other years. I think it was in 
1899. That was another year of high water. I couldn’t 
tell you what was the high mark it reached. I think that 
4291 was the year before I came to Peoria. I think it was 
1899. There has been a number of levees constructed 
down the stream in the past seven or eight years that 
would tend to increase the current of the river and the 
height of the river. They clarified the river; gave us a 
better current and swifter current. That current is 
4292 greater and it clears the water out. It isn’t the same 
water. I think that the stage of high water was greater 
before 1900 than it has been since, largely on account of 


930 


the fact that the rainfall was greater than it was prior 
to 1900. I don’t account for it. We have never had occa- 
4293 sion to stop navigation on account of anything in the 
river except on account of ice. I suppose that it might 
have affected the river about a foot, I should think. It 
4294 largely affected the velocity of the current. I haven’t 
noticed the water at Peru very much during the last ten 
years. I have been up there but didn’t notice the water 
very much; sometimes made the trip; made it the year 
before last during the summer months. I didn’t take 
4295 any particular notice of the condition of the river at that 
time because we got in late at mght and pulled out next 
morning on an excursion. That is the only time I was 
there last summer. In ten years I should say I had been 
to Peru ten times during the summer months. The ques- 
tion as to whether or not there is any change in the con- 
dition of the water at Peru since 1900, over what it was 
prior to 1900, was not in my mind. I don’t know anything 
4296 about it. I have noticed there is a better current. Take 
the current at Peru, any place between Peoria and Pekin. 
I can’t give you the width of the river prior to the turning 
in of the Sanitary water. I can’t come within 200 feet 
of its width. At Peoria it is probably 8,000 feet wide, or 
4297 more. There is a swifter current in the river. I know 
4298 what the current was in the river at Peoria. It was 
practically dead water, practically dead water prior to 
1900. I couldn’t tell you the depth of the river, but in 
4299 Peoria Bay it was dead water. The Illinois River is 
called a bay at Peoria. That is what we call Peoria Bay; 
4300 it is the Lllinois River proper. It is where there is a 
widening of the river. I was familiar with the channel 
4301 prior to the year 1900. It is still about as wide as ever 
and the stream seems to be as dead as it ever was. There 
is no difference that I know of. Right below the Free 
bridge and the P. & P. U. bridge it has been levied since 


931 


1900, and there is a difference in the current; sometimes 
it is levied on one side of the stream and is opened on the 
other and then you would have the back overflow on one 
4302 side and the levee on the other. I think that.in the past 
ten years, on the upper stream, from Hennepin upstream, 
it is clearer. I haven’t noticed any difference in the cur- 
rent of the Illinois River upstream near Hennepin since 
that time. I have not had any experience up there. I 
haven’t had occasion to notice it. There are lots of places 
along the river where we have to make minute observa- 
tions and where they have a heavier current now than 
4303 years ago. That has been down where the levees are. I 
4304 simply had the common observation of a steamboat man 
and would notice a difference in the current when you get 
into a narrow place. That is all there is to it. That is 
the extent of my observing it. On an average, yes, I think 
the current was three miles an hour. It runs faster in 
some places. Thatis at alow water stage. The wider the 
4305 river is the smaller the current. The wider the river the 
less the velocity. 


Orto Herzner, a witness called by the defendant, testified 
as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Otto Hetzner. I live in South Ottawa. I 
am engaged in the stock business, buying and shipping 
stock; for about thirty-five years; been acquainted with 
the value of lands in La Salle County; with the [llinois 
River bottoms. I bring cattle across the bridge at Peru 

4307 and cross the bottoms there; did some years ago; 195 
years ago. It was just alongside of Huse slough, I think. 
I observed some high water in there at that time. We 
were driving cattle through there and they got scattered 


932 


out and they ran in there and we had an awful time get- 
ting them out of there. There was no fences or anything 
there. It was very low, swampy kind of land. That was 
more than 13 years ago. I know the land claimed by the 
La Salle County Carbon Coal Company opposite Peru 
and La Salle and south of the river. I have known it I 
guess for 35 years. I was over on that land recently. I 
saw some corn on that land. There must have been 250 
acres in corn, planted in corn; something like that. That 
was in a piece across from Peru, there was 250 acres. I 
noticed the quality of the corn. It was a pretty fair qual- 
ity of corn in there. I should judge it would run 35 to 40 
bushels to the acre. I think that would be about the aver- 
age. The best of it might have gone about 65, I thought. 
It ranged from that down below. I know the piece of 
land of the La Salle County Carbon Coal Company south 
of the river and west of the Illinois Central and also the 
land east of the Illinois Central and on both sides of the 

4309 C. B. & Q. I have an opinion as to the fair cash market 
value of that land shortly after January 17, 1900. The 
way that the lands were selling, I think that land ought 
to be worth $35 to $40. 


Cross-Examination by Mr. Butters. 


I said before 1900. I didn’t give the value after 1900, 

4310 but I don’t think there is any difference. I don’t think 
there is any difference in the value in 1900 and in 1901. 

IT know about the Sanitary District and I think I know 
when the water was turned in; not the exact date. I have 
traveled there and noticed the effect of the Sanitary Dis- 
trict water on the land along the river. Pursuant to my 
4311 business I go everywhere; haven’t any way of fixing the 
date when I was over there. I think I was driving ten 

or twelve head of cattle. I have not been thinking this 


933 


matter over very much before I took the witness stand. 
I knew I was going to be asked about these matters. I 
talked with Mr. Beebe some. I never talked to Mr. Chip- 
4312 erfield; about 15 years ago is as near as I can come to 
fixing the date when I drove over there. We were going 
north at the time. I have seen the map of this land at 
4313 the Clifton Hotel. I think a man by the name of Strauss 
4314 was with me at that time. The two of us were driving 
eattle. It was about 10 or 11 o’clock in the morning. We 
must have spent three or four hours before we got the 
cattle on the bridge. They went over on the land, this 
4315 coal company land. I think it was in May or April some- 
time, somewhere along there. I think there was corn in 
there then. There were a great many weeds in there, too. 
I remember that. I saw a man working in the corn field. 
I couldn’t tell you how much corn there was. I am sure 
it was in Section 21. It was right east of the bridge at 
4317 the present time and the bridge is there now. I have 
gone past the land on both sides of the Illinois Central, 
many times. About a week ago is when I went over the 
last time. I have been down there several times off and 
4318 on two or three years ago. I don’t think that this land 
would be worth any more money than I have said. I base 
my judgment on what uplands were selling for at that 
time. Upland was selling at that time along about $85 
to $100. I don’t think on upland a man is running the 
same risk he does on that bottom land. I am not inter- 
4319 ested in this case. I am not getting anything today 
while I am here in attendance. I own a farm myself; 
have an interest in a farm out here in Grand Ridge; 120 
acres. The title is in my wife, my second wife. The 
4320 sheriff ordered me to come here. I think I have been 
twice in the Clifton House in regard to my testimony. I 
was up there 15 or 20 minutes. I have not been promised 
anything for testifying in this case. I have never been 


934 


in this court house as a witness before in the last ten 

4321 years. Never bought any land myself; never sold any. 
Don’t know of anybody selling any bottom land or buy- 
ing any. I base my opinion on what land was selling for 
at that time. I know what upland was selling for at that 
time. 


4322 Re-direct Examination by Mr. Chiperfield. 


I took into consideration the fact that no buildings, 
no fences and no permanent improvements could be put 
on that land in fixing my value. 


Henry L. Hossack, a witness called by the defendant, 
testified as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Henry L. Hossack. I reside at Ottawa. I 

4323 am looking after my daughter’s property and my wife’s 
and my own. I have been a contractor until the last two 

or three years; have owned real estate. Have owned dur- 

ing my life time 60,000 acres of land in several different 
states ; have been in the real estate business; two or three 
years here in Ottawa and three years in Nebraska. Have 
had some experience on the Illinois River in boating; 
4324 that was in ’82 and ’83. I was at that time running a 
steamboat.’ It was a 12 foot beam and 60 feet long. I 
have carried 140 people. It was the Belle of Ottawa. I 
have been along the river near Peru and during high wa- 

ter I was not necessarily confined to the channel. I have 
been across the Shippingsport bridge at La Salle many 
times. My uncle built the piers for the Illinois Central 
bridge. I was acquainted with that locality at that time. 

I have been acquainted with the locality more or less. I 
4325 am familiar with high waters in Ottawa here from the 


935 


Illinois River before 1900; on Main street and Shabbona 
street, which is the first street across the Fox River 
bridge. I have seen it run over the street there. I think 
it was about 12 or 15 feet above the level of the Fox River 
as it exists today. I have seen the high waters of the 
Illinois River. I have seen the Illinois River to run over 
the streets of the flats in West Ottawa. I rode over there 
in a steamboat. I have been across the Peru bridge a 
number of times. I know the land which lies east of the 
Peru bridge, between that and the bend of the river, and 
I know the land which hes west of the Illinois Central, 

4326 which is south of the river. I know the land which les 
east of the C. B. & Q. a short distance from Oglesby. 
I have an opinion as to the fair cash market value of 
those lands shortly before 1900. I should say it was 
about $40 an acre. 


Cross-Examination by Mr. Butters. 


I said I had seen the water from the Fox River run- 
ning over Main street. I have seen a map of these lands 
before. I know where the lands are. I have seen them 
from the river and from the road; seen them from the 
Peru bridge and Shippingsport bridge and from the Illi- 
nois Central bridge. I seen them 55 years ago and from 
that on probably every three or four years. I was gen- 
erally in some kind of a conveyance going through that 
country. I was on the road down by them where I could 
see them in the last few days. I was on the Peru bridge 
and the Shippingsport bridge and walked across the Illi- 

4328 nois Central bridge. Assuming there was about 375 
acres of tillable land in section 21 and assuming that from 
’93 down to and including 1900 that land raised a crop 
of upwards 60 bushels to the acre, good sound marketable 
corn, the lands would be worth a great deal more than I 


936 


said, if that was the fact. The land is more fertile than 
upland. Of course, you can’t make a home on it. If the 
land didn’t overflow of course it would be more valuable. 
I think they could afford to lose two out of every ten 
crops and still regard it as valuable. 


4329 Re-direct Exanunation by Mr. Chiperfield. 


I consider the constant risk there would be of the water 
coming down at any time and overwhelming the land, and 
that was considered by me in fixing my value of $40, and 
that was based on my experience and observation, and 
the fact that no buildings could be erected on the land. 


4330 Joun McBripz, a witness called by the defendant, testi- 
fied as follows: 


Direct Exanunation by Mr. Chiperfield. 


My name is John McBride. I reside in Ottawa. My 
business is that of a carpenter. I have lived in Ottawa 
40 or 45 years. I have husked on this land down by the 
Illinois Central bridge and I am pretty familiar with the 
lands by husking’ through them; have seen the lands that 
are involved in this suit, lying across from Peru; east 
of the Peru road; a tract of probably 375 acres. And 
also the land which lies to the west of the Illinois Central 
and south of the Illinois River and on each side of the 

4331 C. B. & Q. I have seen all of these lands. I have seen 
them several times and been on them. I have not done 
any husking there in thirty years. I know from my pre- 
vious experience of the general lay and character of the 
land. I have an opinion as to the value of those lands 
shortly before 1900. I think the lands would be worth 
$25 an acre. 


937 


Cross-Examination by Mr. O’Conor. 


I am 60 years old. I have lived in Ottawa about 40 

or 45 years; La Salle County about the same. It is 
4332 thirty years since I did any husking down in the bot- 
toms. It has probably been three weeks since I was in 

La Salle or Peru. I went down and looked at this land 

at that time. Prior to that had not been down there in 
seven or eight years; went down the river at that time. 
4333 We first looked at that land south of Peru. We went 
down in an automobile from La Salle. Mr. Hossack of 
4336 Ottawa was with me at the time. There is a growth of 
trees on this land south of Peru. There isa slough along 
there. There were willow trees there. We examined 
4337 maybe eighty acres. You couldn’t tell from where we 
were what the condition of the soil was. You could see 

the corn stalks. I think there were some bare spots in 

the field. We stopped there at the Peru bridge maybe 
4339 five minutes. I never owned any bottom land. I have 
owned up hill land. I own some on the north bluff. I 
don’t do much farming; never farmed any bottom. land 

at all; I don’t know how much of this land was in crop 
before 1900. The only time I saw it prior to that it was 
covered with water, the whole of it. I can’t tell you the 
4340 date. I don’t know how much it was possible to crop in 
1900. I think all the land would be good for would be 

for the coal that was under it. The value I placed upon 

it was largely for the value of the coal. That was about 
4341 all that I would ever want to put init. I think the coal 
was worth $25 an acre in 1900, yes. The coal and the land 
together. The land I don’t consider worth much of any- 
thing, not the surface itself is not worth much more than 
4343 $5 an acre. I had in mind its condition about 1900 or 
before in fixing its value. I have been on that land from 
1900 down to this time, JI have heen by it; between 1890 


— 938 


and 1900 I have been on it. I can’t tell you when. I was 
in there hunting. We passed by there. J have been in 
4344 there hunting within ten years. I was never on this land 
4345 when it was dry. I don’t remember when the bridge 
was changed across the river. I don’t think that bridge 
was there. I don’t think the Q. bridge was there. I saw 
4349 the land that lies west of the Illinois Central. We looked 
at that from the embankment of the [Illinois Central. I 
was viewing the premises at that time involved in this 
litigation. I understood that. I couldn’t state how many 
acres there were in that piece. There were trees on the 
4350 piece adjoining the Illinois Central, between where we 
4351 stood and this land. The land south of Peru and also 
that south of La Salle looked pretty much alike to me. I 
don’t think there would be much of any difference in the 
price. I would place the same value on the land near the 
Illinois Central in 1900, $25 an acre. My opinion is if 
4352 there is coal under it that is about all it is worth any- 
thing for; that is my opinion. 


4304 Wituram B. Pussy, a witness called by the defendant, 
testified as follows: 


Direct Examination by Mr. Chiperfield. 


My name is William B. Pusey. I reside in Ottawa. 
Business, real estate and insurance. I have been engaged 
in that business in Ottawa for seven or eight years. Prior 

4395 to that I was teaching school. I am acquainted with La 
Salle and Peru. I know the lands across the river from 
Peru, east of the Peru turnpike or dike and the land be- 
tween that and the river, and the land east and west of 
the Illinois Central opposite La Salle. I am acquainted 
with all those lands, being lands claimed by the La Salle 
County Carbon Coal Company; have seen them many 


939 


times. I don’t know how many times nor for how many 
years, but especially since 1890. I have an opinion as to 
what was the fair cash market value of those lands short- 
ly before 1900. Comparing it with other land about it I 
would say between $25 and $30 an acre. 


4356 Cross-Examimation by Mr. O’Conor. 


I don’t personally own any farm lands now; never did; 
used to own land in Fall River Township; have been in 
the real estate business in Ottawa seven or eight years; 
formerly taught school. I have handled city property in 

4357 Ottawa and also country property. I taught school in 
Fall River Township and in the vicinity of La Salle and 
Peru. I think the land in question, mentioned by me, is 
known as Section 21. It lies south of Peru. I went out 
on the land. I saw three or four different pieces of land. 
(Witness indicates tracts on the map.) I crossed this 

4358 bridge a great many times but especially recently from 
down here and after we crossed the bridge we drove in 
here until we got to the bayou, and we looked over the 

4359 land and didn’t think it necessary to go any further. I 
then came across the Central bridge and went down the 
bluff. I went over on this land a little ways and walked 
to the bluff and looked down at the land; looked at the 
piece marked number 2 and number 3, divided apparently 
by the railroad. I crossed the bridge there on a bicycle 
a number of times and have walked out on the land, too; 
was down in the vicinity of that land a good many times 
prior to the year 1900. In 1890 I crossed the Central 
bridge going to Normal. I have been down in the vicinity 

4360 of this land that lies south of Peru. They seemed to 
have corn on it when I passed there in 1898. There was 
some corn and some weeds; plenty of weeds; in spots 

the corn seemed to be good; only on the edges were 


940 


4361 weeds, big high weeds. Well, they were thick. It was 
just like a cane break. The weeds I should say were 
seven or eight feet high. You could see them from the 
dike and from the bridge. They were both there about 
on a level. I was not considering, in placing my value 
on this land, any value on the coal. I was not consider- 
ing that at all. I don’t know anything about the value 

4362 of coal lands. I don’t know the number of crops that 
were taken off Section 21 from the year 1890 to 1900. I 
don’t know the number of acres in cultivation or the 
bushels per acre that the corn ran or the character of 
the corn raised. I took those things into consideration. 
I knew something about it. I lived on a farm twenty 
years and I can judge pretty well. It was a very regular 

4363 piece of land. I never measured it. I couldn’t say ex- 

4364 actly, but I can estimate and that is all. I think there is 
something over 300 acres. There is spots where they 
eouldn’t cultivate. It is too wet, with water standing 
there. It is only from hearsay that I know anything 
about the acres that are there or the bushels raised per 

4366 acre. I have seen the crops all spoiled there in the 

4367 month of June. I know that I have seen some crops 
destroyed. Never kept an accurate account and don’t 
know how many crops were destroyed in the space of 20 
or 10 years. The June that the crop was destroyed was 

4368 in 1892. That was a flood year. I know of two other 
years. I am talking about that piece up there close to 
the Central Railroad. The water had receded off the 

4370 corn when I saw it. You could see these grounds from 
the train on the Illinois Central over the embankment 
without putting your head out of the window. You can 

4371 see the crops growing over there. In placing my value 
upon this land, I spoke in a general way, including the 
whole thing, the whole bottom. That is, these pieces that . 
are in controversy here. 


941 


Re-direct Examination by Mr. Chiperfield. 


4372 In the spring of the year of 1897 and 1898 I saw the 
crops destroyed on this land; in the spring of ’97 and 
also the spring of ’98 the whole bottoms there were under 
water. When I say the whole bottoms I am speaking 
in a general way; all the low land was under water. 


Re-cross Examination by Mr. O’Conor. 


I saw in the year 1907 the bottoms under water for 
more than a month. I think it was in the latter part of 
March and April and May. I would go beyond the first 
of May, I don’t know what amount of this land was 
eropped in 1897. I saw the water on this land in the 
spring in 1898, during March and April. I don’t know 

4374 how long it stayed on there. 


Orson Hatuert, a witness called by the defendant, testi- 
fied as follows: 


Direct Exanunation by Mr. Chiperfield. 


My name is Orson Hallett. I reside in Utica. I have 

quit farming. Formerly my business was that of a farm- 
4375 er. I was engaged in farming in La Salle County all 
. my life until this spring. I lived in Utica Township over 
50 years; about five miles from La Salle and Peru. I 
have been to Peru and La Salle from time to time, I sup- 
pose for over 45 years. I knew the Shippingsport bridge. 

I never used it very much but I have been across it. I 
have been across the road leading to Deer Park and 
Oglesby. I have been there a good many years ago. I 
know where the []linois River bridge is. I have not been 
4376 across the river on that bridge. I am acquainted in a 
general way with the lands that lie south from Peru and 


942 


east from the wagon road, between that and the river, in- 
cluding a strip here called the Braun land, and also the 
land lying east and west of the Illinois Central. I know 
all of that land. JI have known that land for about 45 
years. I have an opinion as to its fair cash market value 
shortly before 1900 and comparing that with other lands, 
I would not consider that worth over half as much as 

4377 good prairie land. There is some land along there by 
the Vermillion River that is pretty good land. I suppose 
thirty to thirty-five dollars would be about what it is 
worth. 


Cross-Examination by Mr. O’Conor. 


I saw this land about a week or ten days ago. I was 

asked to go down there and look at it. I went down there 
4378 and looked. I saw the land lying south of Peru. I have 
seen all this land I suppose dozens and dozens of times. 

I can’t tell you just when. I have seen it since the year 
1890 from this side of the river, from the north side. I 
4379 had no occasion to go over there. J have been down 
in a boat several times. I saw it a week ago from pretty 
nearly all sides. I was over on the land. I don’t know 
what that particular piece of land raised from 1890 down 

to the year 1900. I only know what I observed there now. 

I have seen the land lots of times by going down the river 

in a boat. I don’t know the actual number of acres that 
were in crop from 1890 to 1900. I don’t know the actual 
4380 number of crops produced on that tract during those 
years. I don’t know the character of the crops taken 
from the land during those years. I had no occasion to 
eare. I don’t know the number of bushels per acre that 

the land yielded. JI have no knowledge now on that sub- 
ject. I am very well acquainted with bottom lands and 

it makes a lot of difference what kind of land it is. That 
4381 is pretty low soggy land, I think. There is a good deal 


943 


of that land that slopes to the south. J think that bay 

up here is not very well drained. It was wet when I saw 

it a week ago. I did not take into consideration, in fix- 

ing my value, the coal that underlaid this land. I did not 

consider that at all. I don’t know about the crops that 

were raised on that land since 1902 down to the present 

time, nor about the acreage, or the character of the crop, 

or the amount of it. I know the land near the Central. 

I don’t know how many acres out there were actually in 

crop, nor how the crop matured, nor when they could put 

the crops in, prior to 1900. Now, if they can crop-it at 

4382 all they can crop it right along. They always could. 

They can put corn in year after year. You can’t do that 

on up hill land. You have got to use different tactics al- 
together. 

Defendant offers in evidence the charter of the La 

Salle County Carbon Coal Company, as part of its case. 

4383 Plaintiff objects; offer is overruled; defendant ex- 

cepts. 


Grorcre Mason, a witness called by the defendant, testified 
as follows: 


Direct Examination by Mr. Chiperfield. 


My name is George Mason. I live at Dalzell, Tlinois. 

It is about four miles northwest of Peru. I am acquaint- 
4384 ed with Peru and La Salle. I have lived in that vicinity 
about 28 years. My first business was mining. In recent 
years I have been farming; for the last 17 years. I have 
been acquainted with the land lying in Section 21, south 

of Peru and east of the Peru road, down across the Peru 
bridge going south, and also the land which lies east and 
west of the Illinois Central Railroad, claimed by the La 
Salle County Carbon Coal Company. I have been ac- 


944 


quainted with those lands for about 25 years. I have an 
opinion as to the value of those lands shortly before 1900. 
I should judge, to the best of my ability, between $35 and 
$40 an acre. 


Cross-Examination by Mr. O’Conor. 


4385 Dalzell is four miles from Peru; say four and a quar- 
ter; somewhere along in there. I have seen the lands in 
question here not over a week ago. I did not go down 
there for the purpose of seeing them. I saw the lands 
at that time lying on each side of what is known as the > 
Ducksberry Road; that is from La Salle towards Ogles- 
by and Portland. I saw the land lying on both sides of 
the road along there. I make it my business to go over 
there quite frequently. My father-in-law lives right there 
on the bottoms east of the Vermillion River. I have seen 

4386 the land lying south of Peru right recently. I saw the 
lands lying south of Peru some time this spring, on both 
sides of the road. I saw the lands along in there between 

4387 1890 up to 1900. I knew the land that Waugh used to 
farm; I can’t tell exactly how many acres of that land 
were in crop from the year 1890 down to the year 1900; 
I don’t know how many acres were raised of that land 
from the year 1885 down to 1900. I don’t know how many 
bushels per acre that land yielded during that period, nor 
the character of the corn. I don’t take into considera- 

4388 tion, in placing my valuation, any of the coal underly- 
ing the surface. I don’t know what the lands raised that 
lie south of the Illinois River and east and west of the 
Illinois Central right of way. I don’t know how many 
acres in that particular piece were under cultivation, nor 
the character of the crops that grew there. 


945 


4389 Wautrrer D. Strawn, a witness called by the defendant, 
testified as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Walter D. Strawn. I reside at 72 Chapel 
street, Ottawa. I am a retired farmer and have lived 
in Ottawa since the 22nd of last November. I was born 
in La Salle County but I lived out of it for 18 years. The 
balance of the time I lived in Ottawa. I have an ac- 
quaintance with La Salle and Peru by traveling through 
there. I know both places. My attention has been called 
to the lands claimed by the La Salle County Carbon Coal 
Company south of Peru and east of the road running 
south from Peru. Also land lying east and west of the 

4390 Illinois Central. I have an opinion as to the fair cash 
market value of that land shortly before 1900, from ob- 
servation and knowing what the land was selling for. I 
think it is worth about $50 an acre. 


4391 Cross-Examination by Mr. O’Conor. 


I looked at those lands especially with a view of ascer- 
taining their quality. I think it was a week ago Sunday 
and a week before that I was down there. I was down 
there twice. I went down there to ascertain the condition 
and the quality of the land. The only way I knew them 
was by driving along the roads or riding over the IIli- 

4392 nois Central. My opinion as to what they were worth 
in 1900 is derived largely from the conditions of the land 
as I saw them the other day, and I assume they were 
in the same condition in 1900 and prior to that time that 
they are today. I think they were probably in about the 
same condition. We took a team and went all over the 
land; Dan McCarthy and myself were down there. We 


946 


4393 drove across the middle road down there. We drove 
around at different places. I should say, from the naked 
eye, there would be no way of draining that land. ‘Take 
it up in the main body of that land the corn is principally 
on the east side of it. On the west side it was all grown 
up with weeds; there is some little corn on the west but 
not so good as on the east. I think the corn averaged a 
little better on that further patch than it did on the oth- 

4394 ers. J never owned any bottom lands. If during the 
years from 1895 to 1900 the corn averaged 60 bushels to 
the acre, my value was low, but according to the way I 
know the land was selling and that there was a more 
hazardous condition in these lands down there and no 
improvements on it whatever, my judgment is that that 
land would always be about the same that it is now. 

4395 I didn’t make any careful examination of that land prior 

4396 to 1900. I would be surprised to know that it raised 
nine consecutive crops prior to the year 1901 but I would 
not think that I had placed too low a value on it from 
the way that lands were selling. There was plenty of 
land sold before 1900 for $60 up to say $85, from 1890 to 

4397 1900. I don’t remember any particular piece that sold 
around January, 1900, for as much as $100 an acre. 


Ropert Warrick, a witness called by the defendant, tes- 
tified as follows: 


Direct Exanunation by Mr. Chiperfield. 


4398 My name is Robert Warrick. I reside in Utica. I am 
a farmer. I have lived in Utica Township over 40 years; 
about five or six miles from Peru and La Salle. I go to 
Peru through La Salle. I am acquainted with the lands 
claimed by the La Salle County Carbon Coal Company 
located south of the Illinois River across from Peru and 


947 


east from the Illinois River bridge and also with the 
lands east and west of the Illinois Central. I have been 

4399 acquainted with them in a general way for about 32 or 
33 years. I have an opinion as to the fair cash market 
value of those lands shortly before 1900. They were 
worth $25 an acre. 


Cross-Examination by Mr. O’Conor. 


I did not include the coal. I would see these lands 
4000 every few weeks or month. I saw the lands in June of 
4401 this year. The land I saw lies on both sides of the dike 
as you cross the bridge. I have been across there most 
every year two or three times a year. I know the place 
where Waugh lived. I was not personally acquainted 
4402 with him but I know all the land that he farmed. I 
don’t know how much in bushels per acre it raised. I 
saw the corn growing on it. I should judge corn was re- 
peated there year after year; always was in corn when 
4403 I saw it. I have traveled over the Illinois Central road 
from La Salle. I don’t know the number of acres lying 
on the land on the east side of the Illinois Central that 
was in crop from the year 1885 down to 1900. I only 
know of the character of the crop raised on it from ob- 
servation. I wasn’t on the ground during any of those 
years. I didn’t go into the field. I don’t know the num- 
4404 ber of acres west of the Central that were under culti- 
vation during those years, nor the yield per acre, nor the 
yield per acre in bushels, nor the character of the corn. I 
never farmed any bottom lands myself. 


Re-direct Examination by Mr. Chiperfield. 


I knew some land in the bottoms that was for sale by 
D. B. Gates at that time. It was situated close to the land 
in question. 


948 


4405 GrorGE SARGEANT, a witness called by the defendant, tes- 
tified as follows: 


Direct Examination by Mr. Chiperfield. 


My name is George Sargeant. I reside in Deer Park 
4406 Township. That is southeast of La Salle. Pretty near 
seven miles from La Salle. My business is that of a 
farmer. I have been engaged in that all my life. I have 
lived in La Salle County 54 years. I am acquainted with 
the Illinois Central bridge where it crosses the river. I 
am acquainted with that portion of it south of the river. 
I know the land claimed by the La Salle County Carbon 
Coal Company lying east and west of the Illinois Central 
bridge. I know the land east, not west. I have an opin- 
ion as to the fair cash market value of that land shortly 
‘before 1900. I should say it wasn’t worth over $30 or $35 
an acre. 


4407 Cross-Examination by Mr. O’Conor. 


I have never farmed any bottom lands. In 1900 I lived 
in Deer Park. I drove to La Salle on the road from Jones 
along the bluff. I don’t know the number of acres act- 
ually in crop on that particular piece. I was not down 
in that field of corn. I observed it as I was passing along 

4408 the dike there. I saw a stand of corn. I should say that 
the corn ran 25 bushels to the acre this year by the looks 
of the stalks; 25, possibly 30. 

My valuation does not include the coal underlying the 

ground. 


949 


4409 JosepH Kinzer, a witness called by the defendant, tes- 
tified as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Joseph Kinzer. I am a farmer. I reside 
in Utica Township. I live about seven miles from La 
Salle and Peru. I have lived there about 35 years; have 
been engaged in farming about 40 years. I know the 
Illinois Central river bridge where it crosses the river 
and runs south from La Salle. I know the lands claimed 
by the La Salle County Carbon Coal Company on the 
other side of the river. JI have an opinion as to the fair 
cash market value of that land shortly before 1900. In 
my opinion it was worth about $25 an acre. 


4410 Cross-Exammation by Mr. O’Conor. 


The lands were good for farming, corn farming. I 

couldn’t say how many crops they raised prior to 1900, 

nor how many crops they lost from 1885 down to 1900. 

I couldn’t tell how many acres were in crop. I don’t 

know whether the corn matured every year or not. I 

know they had crops there every year, but I couldn’t say 

4411 for sure as to that. I don’t know how many bushels 

it run per acre. I did not take into consideration the coal 
underlying the land. 


4412 [D. H. Duaan, called as a witness by the defendant, testi- 
fied as follows: 


Direct Examination by Mr. Chiperfield. 


My name is D. H. Dugan. I reside at Chillicothe, Tli- 
nois. I am connected with the Sanitary District of Chi- 
cago as assistant engineer. J have been with the Dis- 


950 


trict about six years; have had 12 years’ experience as 
an engineer. Three years with the Chicago, Milwaukee 
& St. Paul Railroad Company, and two years with the 
4413 United States Geological Survey in Wisconsin. At va- 
rious times I was employed by private concerns, and 
spent several months with Professor Mead of the Univer- 
sity of Wisconsin, both in the location of water power 
sites and for several months was employed by him in con- 
nection with the reconstruction of the water works sys- 
tem of Decatur, Tlinois. I began with the District about 
Six years ago as instrument man in charge of a party 
making topographic surveys in the Illinois Valley and I 
have been promoted from time to time. I am now assist- 
ant engineer. I have made a computation of the rainfall 
data which was introduced and admitted in evidence in 
this case as to the average totals shown for the different 
vears from 1892 down to date. The totals are: 1898, 
4414 29,22 inches; 1894, 29.71 mehes; 1895, 29.34 inches; 1896, 
30.08 inches; 1897, 30.18 inches; 1898, 39.21 inches; 1899, 
27.03 inches; 1900, 32.18 inches; 1901, 24.95 inches; 1902, 
46.32 inches; 1903, 36.55 inches; 1904, 31.31 inches; 1905, ~ 
30.86 inches; 1906, 33.3 inches; 1907, 38.79 inches; 1908, 
32.11 inches; 1909, 40.06 inches; 1910, 27.36 inches. The 
computation of rainfall during the planting and growing 
season for the same years, that is, April, May, June, July, 
August and September, inclusive, for 1893, 16.83; 1894, 
4416 18.9 inches: 1895, 15.97 inches; 1896, 27.5 inches; 1897, 
13.91 inches; 1898, 20.25 inches; 1899, 16.41 inches; 1900, 
19.47 inches; 1901, 12.87 inches; 1902, 13.42 inches; 1903, 
25.63 inches; 1904, 18.91 inches; 1905, 24.43 inches; 1906, 
18.54 inches; 1907, 25.71 inches; 1908, 19.77 inches; 1909, 
23.82 inches, and 1910, 19.43 inches. The rainfall for Au- 
4417 gust, 1894, was 1.12; August, 1897, 1.6 inches; July, 1898, 
1.95 inches; June, 1899, 2.31 inches; September, 1900, 2.13 
inches; July, 1901, 3.09 inches; September, 1902, 5.58 


951 


4418 inches; July, 5.22 inches, 1903; September, 1904, 4.04 
inches; November, 1905, 2.22 inches; July, 1906, 2.62 
inches; September, 1907, 5.16 inches; October, 1907, 1.08 
inches; September, 1908, 1.12 inches; January, 1909, 2.12 
inches; August, 1910, 3.8 inches, The amount for August, 
1893, is .57 inches. The rainfall applies to the area 
drained by the Illinois River above the City of La Salle. 
IT have made a tabulation or illustration showing a compar- 
ison of the precipitations for the periods or period from 
1893 to 1901 and from 1902 to 1910. 

(The chart of said comparative annual precipitation , 
was marked Exhibits 282, 283.) 

J will explam. On the left side of the plat appears the 
figures 46, 44, 42, 40, 38, 36, 34, 32, 30, 28, 26, 24, 22, 20, 
10 and zero. ‘Those figures represent the scale to which 
the chart is drawn and represent the rainfall in inches. 
At the left is a vertical green column with the figures 

442() 46.32 and the figure 1902 underneath. That column rep- 
resents the annual rainfall over the watershed of the I]li- 
nois River for the year indicated—1902. In the next col- 
umn appears the figures, 40.06 with the figure 1909; that 
column represents the annual rainfall above the City of 
La Salle for the year 1909, drawn to the scale shown at 
the left of the chart. These figures are based upon the 
certified rainfall introduced in this case and admitted as 
evidence in the case. The next column appears the fig- 
ures 38.79 and 1907; that indicates the annual rainfall 
above La Salle for the year 1907 drawn to the scale indi- 
eated at the left of the chart. So on for the other col- 
umns and for the years named, to wit: the years 1906, 

4491 1908, 1904 and 1910. The green columns are arranged 
in their order of greatest magnitude. The column on the 
left represents the year of greatest rainfall and the col- 
umn immediately to the right of that is the year of next 
greatest rainfall; the column to the right of that is the 


952 


year of next greatest rainfall and soon down to the low- 
est rainfall that is represented in the column to the right, 
4422 the extreme right of the chart. The green columns indi- 
eate the annual rainfall above the City of La Salle for 
each of the years 1902 to 1910, inclusive. The red col- 
umns are arranged in like manner to represent the an- 
nual rainfall above the City of La Salle for each of the 
years from 1893 to 1901, inclusive. Across the plat ap- 
pears a green line and above it is written the words 
‘average 1902 to 1910, 35.74 inches’’; that represents the 
. amount of average annual rainfall above the City of La 
Salle for the years 1902 to 1910, inclusive, for each year. 
The red line appearing upon the plat below the green line 
with the words ‘‘average 1893 to 1901, 30.88 inches,’’ that 
is the average annual amount of rainfall above the City 
° 4493 of La Salle for the years 1893 to 1901, inclusive. From 
the years 1893 to 1901 the total amount of rain which fell 
was about 277.9 inches. Between 1902 and 1910, inclu- 
sive, the total amount of rain was about 321.6 inches; a 
total difference of 43.7 inches. In the next chart, No. 
283, there is a plat showing the precipitations from April 
to September, 1893, 1901, 1902 and 1910. That plat is 
constructed in a similar manner as the one just described, 
but it is restricted to those periods, limited to the months 
of April to September of each year. The green column 
represents the rainfall above the City of La Salle, April 
to September of each year from 1902 to 1910. The red 
columns indicate the rainfall above La Salle for each of 
the years in the months of April to September for the 
years 1893 to 1901. 
Which said comparative annual precipitation charts, 
marked Exhibits 282 and 283. respectively, are in the 
words, figures and characters following, to wit: 








Vale? ie ea | ee 2 
F b sete ii, 3 % task >t. oF of a . 


° a 
( : . # a : 





: ity, ef 





‘SPE. 


a 


INE 


o> 


- 


$s; 
; 
’ 


“2 


— 


Oe eee ge 3 
f a wee 


nai 


Te 


tag ae 


TA 


oe a" 





Mr. CHIPERFIELD: I desire to offer in evidence Eix- 
hibits 282 and 283 on behalf of the defendant. 

Mr. O’Connor: Plaintiff objects. 

The Court: Objection sustained. 


Mr. CuHIpEeRFIELD: Defendant excepts. 








953 


4497 Cross-Examination by Mr. O’Conor. 


So far as the rainfall computation is concerned, I have 
taken all the rainfall during a certain period. I don’t 
44928 know what the record shows, from memory. 


954 


4430 Horace J. Curtis, a witness called by the defendant, tes- 
tified as follows: 


Direct Examination by Mr. Chiperfield. 


My name is Horace J. Curtis. I reside in Dowagiac, 
Michigan. I am a civil engineer and draftsman. I 
worked for the Illinois Steel Company in their drafting 
department in Chicago for about a year and a half; about 
six months with the Link Belt Machinery Company as 
draftsman and about eight years with John S. Metcalf 
Company, engineers, in Chicago, drafting, and in August, 
1905, I came with the Sanitary District on their surveys 
in the Illinois Valley and I have been with them most of 
the time since then with the exception of three and a half 
vears in the Philippine Islands as assistant engineer in 
the engineering department. I was working for the Phil- 
ippine Government. I was assistant engineer in the bu- 
reau of public works. JI am familiar with the making of 
topographical surveys. While I was working with the 
Philippine government I did survey work in connection 
with irrigation projects, locating locks and construction, 
building construction, bridge construction and office work 
in connection with the same; designing, and so forth. I 
was employed by the Sanitary District in the survey on 
which this map is based, Exhibit 281. On this particular 
land shown on that map IT was recorder. The recorder 
takes down all the notes that are given to him by» the 
instrument man and makes sketches of the conditions as 

4432 he finds them on the land, so as to facilitate the platting 
of the maps. We just call the notes topographical notes; 
sometimes they are called field notes. I know that the 
field notes and the maps in this case, which have been in- 
troduced in evidence are correct, of my own personal 
knowledge, as one who participated in the survey. I have 


959 


constructed from those field notes and map a chart show- 
ing the relative elevations of the land in question. I have 
constructed one of tract 3 which is shown here, starting 
with the Illinois Central, central of the Illinois Central, 
running across parallel to the north line of the track, 
about 225, feet south, and running across the Vermillion 
4433 River. The second one starts at the road, the east and 
- west road on the bluff there in tract 2 and rung across 
here to the Illinois River. The third tract, tract 4, starts 
back here on the bluff and runs across that tract to the 
river. 
Said plats are marked Exhibits 284, 285 and 286. 
These plats correctly show the surface of this land at 
the points that I have indicated. This black line that 
runs across in an irregular manner on the plat which is 
marked four, is a line representing the surface of the 
ground, as it would be if that section were cut with a 
gigantic knife and shows actually the elevation of the 
ground across the line. This shows the level of the dif- 
ferent pieces or the different parts of the tract clear 
across the tract. It is based upon the survey which was 
4434 made by our party. That is true of the other plats of 
the other tracts. On the tract marked tract 4, there are 
also three lines above the irregular line, which are marked 
‘‘high waters 1892 and 1904’? and also ‘‘high water, 
1883’’ and also ‘‘high water, 1902.’’ They indicate the 
elevation that the high waters of those years stood over 
that ground. The line appearing at the right marked ‘‘L. 
W., 1901,’ that indicates the surface of the low water of 
the year 1901 in the river opposite the tract. The plat is 
drawn to a scale, vertical scale of one inch to five feet and 
a horizontal scale of one inch to 100 feet. The plat is 
referred to the datum plane of the City of Chicago. Chi- 
4435 cago city datum has reference to a plane assumed by en- 
gineers in the city and was taken from the low water of 


996 


1847 in Lake Michigan. Memphis datum is an imagin- 
ary plane referred to the elevation of the water in the 
Gulf of Mexico. I am not certain whether it was in low 
water. I think it was a certain distance below the low 
water. The difference between Chicago city datum and 
Memphis datum is 587.04 feet. On the cross section of 
tract No. 3 there appears a line as high water of 1883, 
high water of 1892, high water of 1904; that indicates the 
elevations that the high waters of those years stood over 
this tract. That plat is also drawn to the same scale. On 
the cross section of tract No. 2 there appears high water 
1883, 1892, 1904; that indicates the elevation of water, 
the high water of those years on that tract. And there 
also appears low water of 1901; that 1s the low water of 


4436 that year opposite that tract. The distance shown be- 


4437 


4446 


4448 
4449 


tween the low water of 1901 on tract No. 4 and the crest 
of the bank is about 12.3 feet. The water surfaces are 
based upon a profile made during the government sur- 
vey of the river by Mr. Woermann in 1900 and 1904. I 
have a certified copy of the profile made of the Woer- 
mann survey. 

Offered in evidence. Offer rejected. 

Defendant excepts. 

EixHrBir 284, 

EXHisir 285. 

EXHIBIT 286. 

ExHIBit 287 


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957 


4451 Ihave a plat of the water surfaces at Brandon’s bridge 
at Joliet for the menths of September and October, 1911, 
and also the water surface of the Illinois River at La 
Salle for the year 1911. 


958 


(The said documents were marked Exhibits 288 and 
289 and are in words, characters and figures following, 
to-wit) : 

4453 Across Exhibit 288 is an irregular line above a heavy 
line, marked September and a lighter line marked Octo- 
ber. The irregular line represents the water surface of 
different days from September to October 1, 1911, as it 
appears from the guage readings of those days, platted 
to a scale showing the actual representation of the water, 
between September 1st and October 31, 1911. It is 
based upon gauge readings which are in evidence in this 
ease, given at Brandon’s bridge, by Albert Lindner. The - 
upper plat, the scale is one inch to a foot, vertical scale 

4454 and the horizontal scale is three inches to one month, or 
one-tenth of an inch to one day. The scale of the lower 

4455 plat is the same as the other. The plat depicts the wa- 
ter surface at Lock 15, La Salle, from September Ist to 
April 31, 1911. It is based upon the gauge readings of 
the weather bureau at La Salle, admitted in evidence in 
this case. (Hach of the plats offered in evidence by the 
defendant.) 

Plaintiff objects; objection sustained; defendant ex- 
cents. 


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959 


4456 On the tract of land in Section 22 I have a notation as 
to what was growing on this land when this survey was 
made in 1906, at which time the different area of crops, 
timber, weeds or anything in physical characteristics of 
the land at that time were noted. On tract 2, being in 
Section 22, there was 79.67 acres of corn; there was 38.17 
acres timber; 14.80 acres timber and weeds and 3.48 acres 

4457 brush and weeds. On tract No. 3 there was 73.51 acres 
of corn and 8.29 acres of timber. On tract 4, being a por- 
tion of Section 21 south of the river and east of the 
slough, there was 297.47 acres of corn, 33.86 acres of 
weeds, 16.88 acres of meadow, 2.41 acres of timber, 13.55 
acres timber and brush, 30.83 acres timber and weeds. In 
tract 19.53 acres corn, 5 acres weeds, .54 meadow, .71 mil- 
let, 15.72 acres timber and weeds. I have aggregated the 

4458 totals of the different physical objects that we found 
upon the entire tracts. In the four tracts there was in 
corn 452.18 acres; in weeds, 38.86 acres; in meadow, 17.22 
acres; in millet, .71 acres; timber, 48.86; timber and 
brush, 13.55 and timber and weeds, 61.35 acres; brush, 
3.48 acres. T'ract No. 3, the portion crossed by the C., B. 
& Q., is 81.80 acres; tract No. 2, the portion west of the 
Ilhnois Central and east of the Shippingsport bridge, 
136.12 acres. Tract 4, the portion of Section 21, south 
of the Illinois River, and east of the bayou is 376.70 
acres; tract 5, the northeast quarter of Section 21, south 
of Huse Lake and east of the Illinois River is 41.50 acres. 
The aggregate of all those figures is 636.21 acres. The 
water surface in MeCormick’s slough during the survey 
in 1906 was secured. The elevation of the water surface 
at that time was minus 137.8 Chicago datum, taken No- 
vember 3, 1906. In the gauge reading at Lock 15, on that 
date, shown by the evidence of Mr. Peterson, of the 
weather bureau, it is given as 11.8 feet. Taking the zero 

4460 of the gauge and computing the water surface of the 


960 - 


river at that date, you would make an elevation of 446.1 
Memphis datum, and subtract that from 587.04, which is 
the difference between Memphis and Chicago datum of 
100, minus 141.4. The difference between the surface of 
the Illinois River and the water surface of MceCormick’s 
slough, from this computation shows as 3.14 feet. The 
elevation of the bottom of MeCormick’s slough, referred 
to Chicago datum, is minus 137.5. The Illinois River was 
lower on November 3, 1906, than the bottom of McCor- 
mick’s slough by 3.44 feet. The river on that same day 
4461 was 2.14 feet lower than the surface of the pond. The 
water surface of the pond on the southwest portion of 
tract No. 2 south of the Illinois River. The difference 
between the elevation of the bottom of the slough in tract 
No. 3, being east of the Illinois Central right of way, and 
the surface of the Illinois River, at the time of the sur- 
vey, was 2.84 feet. The difference between the highest 
and the lowest point of cultivation as found by our sur- 
4462 vey, was 11.5 feet. The lowest point of land in tract 
No. 3, outside of the Vermillion River, is found along 
the slough. The lowest point of cultivated land in tract 
2,is minus 137. The lowest point I suppose is in the bot- 
tom of the river. The highest point is back on the bluff 
just north of the road; a difference between this highest 
point and lewest point on the bank of 32 feet. The high- 
est point of tract 5 is the southeast corner of the section 
and the lowest point of cultivated area minus—42 feet 
4463 difference. The difference between the highest and low- 
est part of tract 5, of the cultivated area is 54 feet. The 
average elevation on the piece of land east of the C., B. & 
4464 Q.is 130. Tract 3 is slightly higher than tract 2. Tract 
38 is higher than tract 4. Tract 3 is higher than tract 5. 
Tract 3 is about five feet above the elevation of the bank 
of the river. The elevation of Water street is minus 120. 
That would be 15 feet above this bank (indicating). 


961 


4465 Cross-Examination by Mr. O’Conor. 


The survey in 1906 was made in the latter part of Oc- 
tober and fore part of November, When I compare high- 
est and lowest points of piece of land, I take the lowest 
point outside of the river, the average bank of the river. 
A man looking at the ground down there, the ground looks 
to be about level. If you are looking for a difference of 
elevation, though, you can see it readily enough. 


4466 D. B. Fox, a witness called by the defendant, testified 
as follows: 


Direct Examination by Mr. Chiperfield. 


My name is D. B. Fox. I reside in Peru. I am ac- 
4467 quainted with the land in Section 21 south of the Illinois 
River and east of the Peru road. JI farmed that land sev- 
eral years ago. In 1880 TI paid half of a thousand dollars 
a year. 
4468 The Court: I will let you show the extent of his ac- 
quaintance with it im general, but I don’t think I can per- 
mit you to show particular dealings with it prior to 1885. 
To which ruling of the court the defendant, by its 
eounsel, then and there duly excepted. 
I farmed this land for seven years. I did not have it 
after 1895. JI commenced with it in 1887 under Waugh. 
4469 I had it for seven years. ] commenced with it in 1887. 
I mean 1877. 
Q. Iwill ask you what rental you paid for this land in 
the year 1884? 
Plaintiff objects; objection sustained; defendant ex- 
cepts. 
Q. During the time you were there did you raise any 
erops on this land? 
Plaintiff objects; objection sustained; defendant ex- 
cepts. 


962 


4470 I knew at the time when Waugh was farming this land. 

4472 T knew from hearsay from the Waugh family how much 
rent they paid for the land. JI have been acquainted with 
this land a good many years; J should say for 40 years. 
T am acquainted with the land west of the Illinois Central 
track and also lying east and west of the C., B. & Q. I 
have known them for a long time. I have an opinion as 
to what was the fair cash market value of that land 
shortly before January, 1900. I think the value of that 
land was $40 an acre, $40. 


4473 Cross-Examination by Mr. O’Conor. 


I was pretty well acquainted with what that land did 

from 1885 to 1900, during the time that Waugh had it. I 
have no feeling in this case. I think most of this land 
was in crop during those years. I think betwixt two and 
three hundred acres below the Illinois River there, west, 
down to the Peru road, running near the pond and all 
down through the road, betwixt two and three hundred 
4474 acres of farm land. In the year 1895, down to the year 
1900, there was about 40 acres of that land that was 
cleaned off. None of the land has been grubbed out across 

the river. J don’t think there was any of them crops lost 
4475 down to 1900, except the year 1892. I don’t know how 
much corn was raised there in 1899, nor what kind of 
corn it was, nor how much it ran to the acre. I don’t 
think the yield there exceeded 40 to 50 bushels an acre. I 
4476 think that was a fair average. It would not raise as 
much corn per acre as uplands, not with me. The land is 
productive, but not as productive as up-hill land; never 
was considered as productive. I don’t think that four 
crops in bottom lands would be as good as five crops on 
4477 uplands, nothing like that. J have known very few acres 
of this land to grow more than 40 or 50 bushels to an acre, 
very few. I think the yield this year wouldn’t be over 


963 


25 bushels to the acre. I should say that last year was 
4478 about the same thing. J haven’t examined the land this 
year. I think the corn on that ground last year and this 
4479 year would grade, That is my judgment of it. I exam- 
4480 ined this land from the bluff last week. The time I 
placed my valuation on this land I took into considera- 
tion the coal underlying the surface. J included the coal, 
4481 whatever rights they have to it. The way they are buy- 
ing this coal it is worth about $15 an acre. I think it was 
worth $15 an acre in 1900. I allowed about $25 for the 
land and $15 for the coal. J saw it in 1900. I think the 
surface was worth about $25 an acre and the coal worth 
$15 an acre. 


4482 W. K. Hoaciunp, a witness called by the defendant, tes- 
tified as follows: 


Direct Examination by Mr. Chiperfield. 


My name is W. K. Hoaglund. I live in Peru, Illinois. 
My business has been manufacturing agricultural imple- 
ments. I have lived in Peru since 1882. Before that 
time I lived in Council Bluffs, Iowa. I am acquainted 
with the land claimed by the La Salle County Carbon 
Coal Company, on Section 21 and across the river, and 
the land which lies west of the Illinois Central and east 
and west of the C., B. & Q. I have an opinion as to the 
fair cash market value of that land shortly before 1900. 
T think it was worth about $50 an acre. 


4483 Cross-Examination by Mr. O’Conor. 


I am 76 years old. JI am around considerable. In a 
general way I have been familiar with the lands 10 years, 
with the lands that Waugh used to farm. I have not been 

4484 down to make any particular inspection of it. I am 


964 


down in the river bottoms almost daily, surely once a 
week. Just walk around there. I have no particular 
knowledge as to how many acres were raised from 1890 
4485 to 1900. In making my valuation I included the coal. I 
would put a valuation on the coal of from $30 to $35, 
and a valuation on the surface of the land at about $15 
4486 to $20. I think that is a good fair price for the year 
1900. I think maybe it was worth more to a man engaged 
in mining. I am talking of the fair cash market value. 
The valuation also applies to the land that lies south and 
west of the river. I saw that land a short time ago. I 
seen it perhaps two or three or four times a year. Some 
of it is good corn raising land. I don’t know how much 
of it. I don’t know the acreage planted to corn at any 
4487 time. The uplands in 1900, good corn land, was worth 
4488 from $75 to $150. I don’t think that four crops on the 
bottoms is as good as five crops on the upland and I 
don’t think eight crops from the bottom lands would 
4489 equal ten crops on the uplands. If the crops were as 
good for a term of years on the bottoms as on the up- 
land, I would not place the valuation the same, because 
of the risk. Locking ahead you wouldn’t see, you don’t 
4490 know anything about it. It is hard for me to assume 
that this land, from 1885 to the year 1900, produced crops 
that ran in corn from 60 to 8 bushels an acre and the 
only year that the crop was lost was the flood year of 
4491 1892, because I lived there and I don’t think that is a 
4492 fact. I did not work the land. I would not swear it was 
not the fact. I get my idea of values there on the gen- 
eral proposition there among the farms and the people 
there that they would rely on two crops sure and pretty 
near three out of five. Now, that is the way I base my 
4493 opinion of its value. I don’t know the bushels raised 
and I don’t know the years. I don’t know how many 
erops it actually raised. 


969 


Re-direct Examination by Mr. Chiperfield. 


I don’t know of a single farm sold as early as 1900 for 
$150 an acre. 






a. eae 7 Nis esa bs 
ae Defendant rests. 


a eis eee 7 oe. 
ar! POs ey SUTAD mh iy 


- 


Exh. 290. 


oF 
cL ARES BS Pod H 


it 
il 


i 


c= woh 





967 


4495 Howarp 8. Hazen, called as a witness in rebuttal by the 
plaintiff, testifies as follows: 


Direct Examination by Mr. O’Conor. 


My name is Howard S. Hazen. I have already testified 
in this case. I am secretary and general manager of the 
La Salle County Carbon Coal Company. In the year 
1909 I made a commercial report to the R. G. Dunn Com- 
pany, Chicago, and in that report I placed a valuation 
upon the various lands we own generally. I included the 

4496 land involved in this suit. I placed a valuation of $100. 

Q. In making up that valuation what did you figure 
in it, Mr Hazen? 

Objected to by the defendant. 

The Court: Itis in the nature of an admission and I 
suppose both sides have a right to give their version of 
it. I think J will let him answer this question. 

A. The basis of valuation included our claim against 
the Sanitary District for damages. 


4498 Cross-Examination by Mr, Chiperfield. 


This is not an after-thought. That is a forethought. 
I did put in the coal rights in the same statement. I 
didn’t put them in at any value. I did not put in 21,000 
acres of coal rights at more than $1,000,000. I did not 

4500 take any copy of the statement. I don’t remember what 

the entire assets of the company were figured at. I was 
not asked the question as to the value of this property 
when I was testifying on the stand. I did not attempt to 
testify to it at that time. 

(Statement to R. G. Dunn Company read to the wit- 
ness.) 

Q. Did you make that statement? A. I presume I 
did. My signature is there. 


968 


4504 Q. I will ask you whether when you got done with the 
report didn’t you add this as a postscript: 

‘*All bills of every kind are audited and paid about 
the 20th of each month. No indebtedness of any kind 
after that date. This information is for your use only 
and not to be given to the public. We don’t ask much 
credit and feel like Vanderbilt on a certain occasion.”’ 

Q. Did you write that? A. I imagine T did. 

The number of shares of our company is 10,000. 

4505 @. Now, did you state at that time in this statement 
that you were relying on recovery from the Sanitary Dis- 
trict? <A. No, sir. 

Q. How much did you have in mind, $200,000, that 
you were suing for? A. I told you in 1888 what I had 
in mind. 

4506 Q@. You stated to me in 1898? A. During the Braun 
trial, when I said this case would never be settled out of 
court. 

@. Didn’t vou say you would be glad to settle for the 
$20 an acre that was claimed in the case? A. I told you 
we would never settle this case outside of court for less 
than that. 

Q. Didn’t you say, Mr. Hazen, you would be glad to 
settle it? A. No. 

4507 Q. You say you included your claim against the Sani- 
tary District? A. Why, I expect to get $100 an acre 
out of it before we get through with it. 

@. You are doomed to a big disappointment? A. I 
am willing to take my chances. 

Mr. O’Conor: Well, we will take our chance. 

Mr. CurperrieLp: Q. Now, how much did you figure 
the coal rights were worth when you made that state- 
ment? 

A. I didn’t figure it. 

Q. I ask you now how much you figured it, if you were 


969 


making a mental reservation, how much you figured the 
coal rights were worth? A. I didn’t give any value on 
the coal rights whatever. 

@. I am asking you how much you figured the coal 
rights were worth at that time? <A. I can’t tell you. 

Q. You won’t answer? A. No, sir. . 

Mr. CuiperFieLp: That is all, Mr. Hazen. 

4509 Mr. O’Conor: In the deed from Rachel L. Neustadt 
and Morris Neustadt, to the Illinois Valley Coal Com- 
pany, which was marked Exhibit 8, there is the following 
reservation: 

The party of the first part reserves the right to quar- 
ry stone and remove the same from said track of land by 
team or otherwise, also the right to lay a track from the 
Illinois Central Railroad track to the quarry for the re- 
moval of said stone. 

These reservations are made for the benefit of George 
W. Snow, Rachael L. Neustadt and Morris Neustadt, her 
husband, and Emiline E. Snow, wife of G. G. Snow, and 
shall continue only during their life time. 

The deed was made in the year 1870 and relates to 
some quarry rock that is not down on the bottom. 

The above and foregoing is all of the evidence offered 
and introduced by either party to said cause upon the 
trial thereof. | 

And thereupon the defendant, by its attorney, moves 
the court in writing as follows: 

4512 Whereupon the defendant, by its counsel, moved the 
court to exclude from the consideration of the jury Ex- 
hibit 1 for the reason that the same does not tend to 
prove the plaintiff’s cause of action; that the said exhibit 
creates a variance between the allegations of the declara- 
tion and the proof offered; for the further reason that 
there is no proper foundation appearing in this record 
for the admission of said exhibit; because the same does 


970 


not relate to the premises described in plaintiff’s declar- 
ation; because the same does not tend to establish own- 
ership in the plaintiff; because there is no sufficient proof 
of the execution of the same; because the same is not 
properly acknowledged. 

Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then and 
there duly excepted. 

The defendant, by its counsel, moved to exclude from 
the consideration of the jury Exhibit 3 for the reason 
that it does not tend to prove plaintiff’s cause of action; 
that it creates a variance between the allegations of the 
declaration and the proof offered; because there is no 
proper foundation appearing in this record for the ad- 
mission of said exhibit; because it does not relate to the 
premises described in plaintiff’s declaration; because the 
same does not tend to establish ownership in the plain- 
tiff; because there is no sufficient proof of the execution 
of the same; because same is not properly acknowledged ; 
that said exhibit does not purport to contain description 

4513 of the premises, but refers to other deeds therein named 
which have not been properly or sufficiently identified as 
connected with the premises involved in this proceeding. 

Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel then and 
there excepted. 

The defendant, by its counsel moved to exclude from 
the consideration of the jury Exhibit 4 for the reason it 
does not tend to prove plaintiff’s cause of action; that 
it creates a variance between the allegations of the dec- 
Jaration and the proof offered; because there is no 
proper foundation appearing in this record for the ad- 
mission of said exhibit; because it does not relate to the 
premises described in plaintiff’s declaration; because the 
same does not tend to establish ownership in the plain- 


971 


tiff; because there is no sufficient proof of the execution 
of the same; because the same is not properly acknowl- 
edged, 

Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then and 
there excepted. 

The defendant, by its counsel, moved to exclude from 
the consideration of the jury Exhibit 5 for the reason 
that it does not tend to prove plaintiff’s cause of 
action; that it creates a variance between the allegations 
of the declaration and the proof offered; because there is 

4514 no proper foundation appearing in this record for the 
admission of said exhibit; because it does not relate to 
the premises described in plaintiff’s declaration; be- 
cause the same does not tend to establish ownership in 
the plaintiff; because there is no sufficient proof of the 
execution of the same; because same is not properly 
acknowledged. 

Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then and 
there duly excepted. 

The defendant, by its counsel, moved to exclude from 
the consideration of the jury Exhibit 6 for the reason 
that it does not tend to prove plaintiff’s cause of ation; 
that it creates a variance between the allegations of the 
declaration and the proof offered; because there is no 
proper foundation appearing in this record for the ad- 
mission of said exhibit; because it does not relate to the 
premises described in plaintiff’s declaration; because the 
same does not tend to establish ownership in the plain- 
tiff ; because there is no sufficient proof of the execution 
of the same; because same is not properly acknowleged. 

Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then 
and there duly excepted, 


972 


The defendant, by its counsel, moved to exclude from 
the consideration of the jury Exhibit 7 for the reason 
that it does not tend to prove plaintiff’s cause of action; 
that it creates a variance between the allegations of the 
declaration and the proof offered; because there is no 

4515 proper foundation appearing in this record for the ad- 
mission of said exhibit; because it does not relate to the 
premises described in plaintiff’s declaration; because the 
same does not tend to establish ownership in the plain- 
tiff ; because there is no sufficient proof of the execution 
of the same; because same is not properly acknowledged. 

Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then 
and there duly excepted. 

The defendant, by its counsel, moved to exclude from 
the consideration of the jury Exhibit 8 for the reason 
that it does not tend to prove plaintiff’s cause of action; 
that it creates a variance between the allegations of the 
declaration and the proof offered; because there is no 
proper foundation appearing in this record for the ad- 
mission of said exhibit; because it does not relate to the 
premises described in plaintiff’s declaration; because the 
same does not tend to establish ownership in the plain- 
tiff; because there is no sufficient proof of the execution 
of the same; because same is not properly acknowledged. 

Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then and 
there duly excepted. 

The defendant, by its counsel, moved to exclude from 
the consideration of the jury Exhibit 9 for the reason that 
it does not tend to prove plaintiff’s cause of action; that 
it creates a variance between the allegations of the dec- 

4516 laration and the proof offered; because there is no 
proper foundation appearing in this record for the ad- 
mission of said exhibit; because it does not relate to the 


973 


premises deseribed in plaintiff’s declaration; because the 
same does not tend to establish ownership in the plain- 
tiff; because there is no sufficient proof of the execution 
of the same; because same is not properly acknowledged. 

Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then and 
there duly excepted. 

The defendant, by its counsel, moved to exclude from 
the consideration of the jury the testimony of each and 
every witness upon the part of the plaintiff with refer- 
ence to the overflow of plaintiff’s premises, or to the in- 
jury of any crop, or of the condition of any crop, or of 
the value of any crop, or of the use to which plaintiff 
might have put such premises since the 17th day of Janu- 
ary, 1900. The theory on which this motion is made is 
that the cause of action of the plaintiff became completed 
upon putting into operation the permanent use of the im- 
provement authorized by the statute. 

Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then and 
there duly excepted. 

The defendant, by its counsel, then and there moved to 
exclude from the consideration of the jury the testimony 
of each and every witness upon the part of the plaintiff 
with reference to the overflow of the plaintiff’s prem- 

4517 ises, or to the injury of any crop, or of the condition of 
any crop, or of the value of any crop, or of the use to 
which plaintiff might have put such premises since the 
first day of July, 1902. The theory upon which this mo- 
tion is made is that prior to the 1st day of July, 1902, the 
operation of the District was such that the effect of the 
use of the improvement was plainly perceptible. 

Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then 
and there duly excepted. 


974 


The defendant, by its counsel, moved to exclude from 
the consideration of the jury the testimony of every wit- 
ness upon the part of the plaintiff with reference to the 
overflow of plaintiff’s premises, or to the injury of any 
crop, or of the condition of any crop, or of the value of 
any crop, or of the use to which the plaintiff might have 
put such premises since the 14th day of January, 1905. 
The theory on which this motion is made is that the cause 
of action at that time became complete and that if there 
is a recovery by the plaintiff it must be upon those causes 
of action which had accrued and those injuries which had 
been done prior to the date of the issuance of the sum- 
mons in this case. 

Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then and 
‘there duly excepted. } 

The defendant, by its counsel, then and there moved to 
strike out and exclude from the consideration of the jury 
any and all evidence with reference to all overflow of 

4518 the land in controversy in this case, for the reason that 
it is not shown by the evidence upon the part of the 
plaintiff what part, if any, of this overflow the defendant 
in this case is responsible for, but puts the burden of 
proof upon the defendant in this case to show what the 
quantity of overflow was and to determine where the re- 
sponsibility of such overflow rested. 

Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel then 
and there duly excepted. 


The defendant, by its counsel, moved to exclude from 
the consideration of the jury all of the evidence of each 
and every witness with reference to injury to any crops 
upon the premises in question for the years 1900, 1901, 
1902, 1908, 1904, 1905, 1906, 1907, 1908, 1909, 1910, 1911 
and 1912. 


975 


Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then and 
there duly excepted. 


The defendant, by its counsel, moved to exclude all the 
evidence of each and every witness with reference to in- 
Jury to any crops upon the premises in question for the 
year 1900. 

Which motion the court overruled; to which ruling 
of the court, the defendant, by its counsel, then 
and there duly excepted. 


The defendant, by its counsel, moved to exclude all of 
the evidence of each and every witness with reference to 
injury to any crops upon the premises in question for the 
year 1901. 

Which motion the court overruled; to which ruling 


4519 of the court the defendant, by his counsel, then 


and there duly excepted. 


The defendant, by its counsel, moved to exclude all 
of the evidence of each and every witness with reference 
to injury to any crops upon the premises in question for 
the year 1902. 

Which motion the court overruled; to which ruling 
of the court, the defendant, by its counsel, then 
and there duly excepted. 1 


The defendant, by its counsel, moved to exclude all of 
the evidence of each and every witness with reference to 
injury to any crops upon the premises in question for the 
year 1903. 

Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then and 
there duly excepted. 


The defendant, by its counsel, moves to exclude all of 
the evidence of each and every witness with reference to 


976 


injury to any crops upon the premises in question for 
the year 1904. 
Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then and 
there duly excepted. 


The defendant, by its counsel, moves to exclude all of 
the evidence of each and every witness with reference to 
injury to any crops upon the premises in question for the 
year 1905. 

Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then and 
there duly excepted. 


The defendant, by its counsel, moved to exclude all of 
the evidence of each and every witness with reference to 
4520 injury to any crops upon the premises in question for 
the year 1906. 
Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then and 
there duly excepted. 


The defendant, by its counsel, moved to exclude all of 
the evidence of each and every witness with reference to 
injury to any crops upon the premises in question for the 
year 1907. 

Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then and 
there duly excepted. 


The defendant, by its counsel, moved to exclude all of 
the evidence of each and every witness with reference to 
injury to any crops upon the premises in question for the 
year 1908. } j 

Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then and 
there duly excepted. 


The defendant, by its counsel, moved to exclude all of 


Dit 


the evidence of each and every witness with reference to 
injury to any crops upon the premises in question for the 
year 1909. 
Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel then and 
there duly excepted. 


The defendant, by its counsel, moved to exclude all of 
the evidence of each and every witness with reference to 
injury to any crops upon the premises in question for the 
year 1910. 

Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then and 
there duly excepted. 


4521 The defendant, by its counsel, moved to exclude all 
of the evidence of each and every witness with reference 
to injury to any crops upon the premises in question for 
the year 1911. 

Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then and 
there duly excepted. 


The defendant, by its counsel, moved to exclude all of 
the evidence of each and every witness with reference to 
injury to any crops upon the premises in question for the 
year 1912. 

Which motion the court overruled; to which ruling 
the defendant, by its counsel, then and there duly 
excepted. 


The defendant, by its counsel, moved to exclude from 
the consideration of the jury all of the testimony in ref- 
erence to the quality of crops raised upon the lands in 
controversy at any time either prior to or subsequent to 
the filing of the declaration in this suit, for the reason 
that the same is incompetent, irrelevant and immaterial 


978 


and does not tend to establish any of the issues in this 
case. 
Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then and 
there duly excepted. 


The defendant, by its counsel, moved to exclude from 
the consideration of the jury all of the following de- 
scribed premises, the North half of the Northwest quar- 
ter of Section 21, Township 33 North, range 1 east of the 

. 8rd Principal Meridian, lying south of the Illinois and 
east of the bayou, as the same appears upon Exhibit 13. . 
4522 Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then and 

there duly excepted. 


The defendant, by its counsel, moved to exclude from 
the testimony in this case the testimony of W. A. Means 
upon the question of the value of the premises described 
in the plaintiff’s declaration for the following reasons? 

Ist. That no sufficient foundation has been laid for 
the testimony of said witness, and the expression of an 
opinion as to the fair cash market value. 

2nd. That said witness in the giving of said testimony 
has shown no such acquaintances with the premises and 
values of real estate in that vicinity as to quality him 

| for the expression of an opinion thereon. 

3rd. That said witness did not in his expression of 
opinion state or attempt to state the fair market value of 
the premises involved. 

4th. That in the expression of such opinion said wit- 
ness has adopted an improper basis; that 1s to say, that 
said witness has expressed an opinion as to the value of 
said premises merely from the standpoint of what the 
said land would produce for agricultural purposes with- 
out reference to the real or actual market value. 

5th. That the said witness did not include in the esti- 


979 


mation of the value of said premises the coal that was 
contained therein, but did exclude the same from his 
opinion and refused to consider the value thereof. 

4523 6th. That the said witness did not exclude from the 
fair cash market value of said land the various excep- 
tions and reservations contained in the said deeds which 
have been introduced by the plaintiff in this case for the 
purpose of attempting to prove title, but did place a 
value on said premises without regard to said exceptions 
or reservations as therein contained. 

7th. That said witness refused to consider the fair 
cash market value of said premises from the standpoint 
of the highest and best use that could be made thereof. 

8th. That said witness in the expression of opinion as 
to values given by him merely took into consideration 
the value of said premises from the standpoint of the use 
and adaptability of said premises for the purpose of 
raising corn. 

9th. That in the expression of said opinion as to value 
said witness was permitted to take into consideration 
everything which he knew about said premises until the 
date of the giving of said testimony with reference to the 
value thereof, without disclosing the basis therefor to 
the court, the jury, or counsel; but was permitted and 
required to state an opinion upon the basis of matters 
which were known only to himself and not disclosed upon 
this hearing. 

10th. That said witness in the expression of an opin- 
ion was permitted to take into consideration the condi- 
tion of said premises subsequent to the date of the filing 
of the declaration herein, to-wit: the 14th day of January, 
1905, and up to and including the giving of his testimony. 

11th. That said witness in the expression of the opin- 
ion as to injury of premises involved herein was required 

4524 to take into consideration all overflow of premises de- 


980 


scribed in the plaintiff’s declaration, without reference 
to whether or not such overflow was caused by acts under 
the direction and control of the defendant to this suit; 
but were permitted to assume that all the injury which 
he claims occurred to said premises was caused by the 
act of the defendant herein. — 
Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then and 
there duly excepted. 


The defendant, by its counsel, moved to exclude from 
the testimony in this case the testimony of Joseph 
Greiner upon the question of the value of the premises 
described in the plaintiff’s declaration for the following 
reasons: | 

1st. That no sufficient foundation has been laid for 
the testimony of said witness, and the expression of an 
opinion as to the fair cash market value. 

2nd. That said witness in the giving of said testimony 
has shown no such acquaintance with the premises and 
values of real estate in that vicinity as to qualify him for 
the expression of an opinion thereof. 

3rd. That said witness did not in his expression of 
opinion, state or attempt to state, the fair market value 
of the premises involved. 

4th. That in the expression of such opinion said wit- 
ness has adopted an improper basis; that is to say, that 
said witness has expressed an opinion as to the value of 
said premises merely from the standpoint of what the 

4525 said land would produce for agricultural purposes, 

without reference to its real or actual market value. 
5th. That the said witness did not include in the esti- 
mation of the value of said premises the coal that was 
contained therein, but did exclude the same from his 
opinion and refused to consider the value thereof. | 
6th. That the said witness did not exclude from the 


981 


fair cash market value of said land the various excep- 
tions and reservations contained in the said deeds which 
have been introduced by the plaintiff in this case, for the 
purpose of atempting to prove title, but did place a value 
on said premises without regard to said exceptions or 
reservations as therein contained. 
7th. That said witness refused to consider the fair 
cash market value of said premises from the standpoint 
of the highest and best use that could be made thereof. 

8th. That said witness in the expression of opinion 
as to values given by him merely took into consideration 
the value of said premises from the standpoint of the 
use and adaptability of said premises for the purpose of 
raising corn. 

9th. That in the expression of said opinion as to 
values said witness was permitted to take into consider- 
ation everything which he knew about said premises un- 
til the date of the giving of said testimony with reference 
to the value thereof, without disclosing the basis there- 
for to the court, the jury, or counsel; but was permitted 
and required to state an opinion upon the basis of mat- 
ters which were known only to himself and not disclosed 
upon this hearing. 

4526 10th. That said witness in the expression of an opin- 
ion was permitted to take into consideration the con- 
dition of said premises subsequent to the date of the 
filing of the declaration herein, to-wit: the 14th day of 
January, 1905, and up to and including the giving of his 
testimony. 

11th. That the said witness in the expression of the 
opinion as to injury of premises involved herein was re- 
quired to take into consideration all overflow of premises 
described in the plaintiff’s declaration, without refer- 
ence to whether or not such overflow was caused by acts 
under the direction and control of the defendant to this 


982 


suit; but were permitted to assume that all the injury 
which he claims had occurred to said premises was caused 
by the act of the defendant herein. 
Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then and 
there duly excepted. 


The defendant, by its counsel, moved to exclude from 
the testimony in this case the testimony of Henry Ream — 
upon the question of the value of the premises described 
in the plaintiff’s declaration for the following reasons: 

Ist. That no sufficient foundation has been laid for 
the testimony of said witness and the expression of an 
opinion as to the fair cash market value. 

2nd. That said witness in the giving of said testimony 
has shown no such acquaintance with the premises and 
values of real estate in that vicinity as to qualify him for 

4527 the expression of an opinion thereon. 

3rd. That said witness did not in his expression of 
opinion, state or attempt to. state, the fair market value 
of the premises involved. 

4th. That in the expression of such opinion said wit- 
ness has adopted an improper basis; that is to say, that 
said witness has expressed an opinion as to the value of 
said premises merely from the standpoint of what the 
said land would produce for agricultural purpose, with- 
out reference to its real or actual market value. 

5th. That the said witness did not include in the esti- 
mation of the value of said premises the coal that was 
contained therein, but did not exclude the same from his 
opinion and refused to consider the value thereof. 

6th. That the said witness did not exclude from the 
fair cash market value of said land the various excep- 
tions and reservations contained in the said deeds which 
have been introduced by the plaintiff in this case, for the 
purpose of attempting to prove title, but place a value 


983 


on said premises without regard to said exceptions or 
reservations as therein contained. 
7th. That said witness refused to consider the faiy 
cash market value of said premises from the standpoint 
of the highest and best use that could be made thereof. 
8th. That said witness in the expression of opinion as 
to values given by him merely took into consideration 
the value of said premises from the standpoint of the use 
4528 and adaptability of said premises for the purpose of 
raising corn. 
9th. That in the expression of said opinion as to 
values said witness was permitted to take into consider- 
ation everything which he knew about said premises un- 
til the date of the giving of said testimony with refer- 
ence to the value thereof, without disclosing the basis 
therefor to the court, the jury, or counsel; but was per- 
mitted and required to state an opinion upon the basis 
of matters which were known only to himself and not 
disclosed upon this hearing. 
10th. That said witness in the expression of an opin- 
ion was permitted to take into consideration the condi- 
tion of said premises subsequent to the date of the filing 
of the declaration herein, to-wit: the 14th day of January, 
1905, and up to and including the giving of his testimony. 
1ith. That the said witness in the expression of the 
opinion as to injury of premises involved herein was re- 
quired to take into consideration all overflow of premises 
described in the plaintiff’s declaration, without reference 
to whether or not such overflow was caused by acts un- 
der the direction and control of the defendant to this 
suit; but were permitted to assume that all the injury 
which he claims had occurred to said premises was 
caused by the act of the defendant herein. 
Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then and 
there duly excepted. 


984 


The defendant, by its counsel, moved to exclude from 

the testimony in this case the testimony of Henry Myer 
4529 upon the question of value of the premises described in 

the plaintiff’s declaration for the following reasons: 

1st. That no sufficient foundation has been laid for 
the testimony of said witness, and the expression of an 
opinion as to the fair cash market value. 

2nd. That said witness in the giving of said testimony 
has shown no such acquaintance with the premises and 
values of real estate in that vicinity as to qualify him for 
the expression of an opinion thereon. 

3rd. That said witness did not in his expression of 
opinion state or attempt to state the fair market value 
of the premises involved. 

4th. That in the expression of such opinion said wit- 
ness has adopted an improper basis, that is to say, that 
said witness has expressed an opinion as to the value of 
said premises merely from the standpoint of what the 
said land would produce for agricultural purposes, with- 
out reference to its real or actual market value. 

5th. That the said witness did not include in the esti- 
mation of the value of said premises the coal that was 
contained therein, but did exclude the same from his 
opinion and refused to consider the value thereof. 

6th. That the said witness did not exclude from the 
fair cash market value of said land the various excep- 
tions and reservations contained in the said deeds which 
have been introduced by the plaintiff in this case for the 
purpose of attempting to prove title, but did place a 

4530 value on said premises without regard to said excep- 

tions or reservations as therein contained. 

7th. That said witness refused to consider the fair 
eash market value of said premises from the standpoint 
of the highest and best use that could be made thereof. 

8th. That said witness in the expression of opinion as 


985 


to values given by him merely took into consideration the 
value of said premises from the standpoint of the use 
and adaptability of said premises for the purpose of rais- 
ing corn. 

9th. That in the expression of said opinion as to 
values said witness was permitted to take into considera- 
tion everything which he knew about said premises un- 
til the date of the giving of said testimony with reference 
to the value thereof, without disclosing the basis therefor 
to the court, the jury, or counsel; but was permitted and 
required to state an opinion upon the basis of matters 
which were known only to himself and not disclosed upon 
this hearing. 

10th. That said witness in the expression of an opin- 
10n was permitted to take into consideration the condi- 
tion of said premises subsequent to the date of the filing 
of the declaration herein, to-wit: the 14th day of Janu- 
ary, 1905, and up to and including the giving of his tes- 
timony. 

11th. That the said witness in the expression of the 
Opinion as to injury of premises involved herein was re- 
quired to take into consideration all overflow of prem- 
ises described in the plaintiff’s declaration without ref- 
erence to whether or not such overflow was caused by 
acts under the direction and control of the defendant to 

4531 this suit but was permitted to assume that all the injury 
which he claims had occurred to said premises was 
caused by the act of the defendant herein. 

Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then 
and there duly excepted. 

The defendant, by its counsel, moved to exclude from 
the testimony in this case the testimony of Charles 
Mudge upon the question of values of the premises de- 
seribed in the plaintiff’s declaration for the following 
reasons: 


986 


Ist. That no sufficient foundation has been laid for 
the testimony of said witness, and the expression of an 
opinion as to the fair cash market value. 

2nd. That said witness in the giving of said testimony 
has shown no such acquaintance with the premises and 
values of real estate in that vicinity as to qualify him 
for the expression of an opinion thereon. 

ard. That said witness did not in his expression of 
opinion, state or attempt to state the fair market value 
of the premises involved. 

4th. That in the expression of said opinion said wit- 
ness adopted an improper basis; that is to say, that said 
witness has expressed an opinion as to the values of said 
premises merely from the standpoint of what the said 
land would produce for agricultural purposes, without 
reference to its real or actual market value. 

Sth. That the said witness did not include in the esti- 
mation of the value of said premises the coal that was 

4532 contained therein, but did.exclude the same from his 
opinion and refused to consider the value thereof. 
6th. That the said witness did not exclude from the 
fair cash market value of said land the various excep- 
tions and reservations contained in the said deeds which 
have been introduced by the plaintiff in this case for the 
purpose of attempting to prove title, but did place a 
value on said premises without regard to said excep- 
tions or reservations as therein contained. 

7th. That said witness refused to consider the fair 
cash market value of said premises from the standpoint 
of the highest and best use that could be made thereof. 

8th. That said witness in the expression of opinion 
as to values given by him merely took into consideration 
the value of said premises from the standpoint of the 
use and adaptability of said premises for the purpose 
of raising corn. 


987 


9th. That in the expression of said opinion as to val- 
ues said witness was permitted to take into consideration 
everything which he knew about said premises until the 
date of the giving of said testimony with reference to 
the value thereof, without disclosing the basis therefor 
to the court, the Jury or counsel; but was permitted and 
required to state an opinion upon the basis of matter 
which were known only to himself and not disclosed upon 
this hearing. 
10th. That said witness in the expression of an opin- 
ion was permitted to take into consideration the condi- 
tion of said premises subsequent to the date of filing of 
4533 the declaration herein, to-wit: the 14th day of January, 
1905, and up to and including the giving of his testi- 
mony. 
11th. That the said witness in the expression of the 
opinion as to injury of premises involved herein was 
required to take into consideration all overflow of prem- 
ises described in the plaintiff’s declaration without refer- 
ence to whether or not such overflow was caused by acts 
under the direction and control of the defendant to this 
suit, but was permitted to assume that all the injury 
which he claims had occurred to said premises was caused 
by the act of the defendant herein. 
Which motion the court overruled; to Saat ruling of 
the court the defendant, by its counsel, then and 
there duly excepted. 


The defendant, by its counsel, moved to exclude from 
the testimony in this case the testimony of Ed Pyka upon 
the question of values of the premises described in the 
plaintiff’s declaration for the following reasons: 

Ist. That no sufficient foundation has been laid for 
the testimony of said witness and the expression of an 
opinion as to the fair cash market value. 

2nd. That said witness in the giving of said testimony 


988 


has shown no such acquaintance with the premises and 
values of real estate in that vicinity as to qualify him 
for the expression of an opinion thereof. 

3rd. That said witness did not in his expression of 
opinion state or attempt to state the fair market value of 
the premises involved. 

4th. That in the expression of such opinion said wit- 

4534 ness has adopted an improper basis; that is to say, that 
said witness had expressed an opinion as to the value of 
said premises merely from the standpoint of what the 
said land would produce for agricultural purposes, with- 
out reference to its real or actual market value. 

Sth. That the said witness did not include in the es- 
timation of the value of said premises the coal that was 
contained therein, but did exclude the same from his opin- - 
ion and refused to consider the value thereof. 

6th. That the said witness did not exclude from the 
fair cash market value of said land the various excep- 
tions and reservations contained in the said deeds which 
have been introduced by the plaintiff in this case for 
the purpose of attempting to prove title, but did place a 
value on said premises without regard to said exceptions 
or reservations as therein contained. 

7th. That said witness refused to consider the fair 
cash market value of said premises from the standpoint 
of the highest and best use that could be made thereof. 

Sth. That said witness in the expression of opinion 
as to values given by him merely took into consideration 
the value of said premises from the standpoint of the 
use and adaptability of said premises for the purpose of 
raising corn. 

9th. That in the expression of said opinioin as to val- 
ues said witness was permitted to take into consideration 
everything which he knew about said premises until the 
date of the giving of said testimony with reference to the 


989 


value thereof, without disclosing the basis therefor to 
the court, the jury or counsel; but was permitted and re- 
quired to state an opinion upon the basis of matters 
4535 which were known only to himself and not disclosed 
upon this hearing. 
10th. ‘That said witness in the expression of an opin- 
ion was permitted to take into consideration the condi- 
tion of said premises subsequent to the date of the filing 
of the declaration herein, to-wit: the 14th day of Janu- 
ary, 1905, and up to and including the giving of his testi- 
mony. 
1ith. That the said witness in the expression of the 
opinion as to injury of premises involved herein was 
required to take into consideration all overflow of prem- 
ises described in the plaintiff’s declaration without ref- 
erence to whether or not such overflow was caused by 
acts under the direction and control of the defendant to 
this suit; but was permitted to assume that all the injury 
which he claims had occurred to said premises was caused 
by the act of the defendant herein. 
Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then and 
there duly excepted. 


The defendant, by its counsel, moved to exclude from 
the testimony in this case the testimony of Charles Cas- 
tendyck upon the question of values of the premises de- 
seribed in the plaintiff’s declaration for the following 
reasons: 

1st. That no sufficient foundation has been laid for 
the testimony of said witness and the expression of an 
opinion as to the fair cash market value. 

2nd. That said witness in the giving of said testi- 
mony has shown no such acquaintance with the prem- 
ises and values of real estate in that vicinity as to qual- 

4536 ify him for the expression of an opinion thereon. 


990 


38rd. That said witness did not in his expression of 
opinion, state or attempt to state, the fair market value 
of the premises involved. 

4th. That in the expression of such opinion said wit- 
ness has adopted an improper basis; that is to say, that 
said witness has expressed an opinion as to the value 
of said premises merely from the standpoint of what 
said lands would produce for agricultural purposes, with- 
out reference to its real or actual market value. 

Sth. That the said witness did not include in the esti- 
mation of the value of said premises the coal that was 
contained therein, but did exclude the same from his 
opinion and refused to consider the value thereof. 

6th. That the said witness did not exclude from the 
fair cash market value of said land the various excep- 
tions and reservations contained in the said deeds which 
has been introduced by the plaintiff in this case, for the 
purpose of attempting to prove title, but did place a 
value on said premises without regard to said exceptions 
or reservations as therein contained. 

7th. That said witness refused to consider the fair 
cash market value of said premises from the standpoint 
of the highest and best use that could be made thereof. 

Sth. That said witness in the expression of opinon as 
to values given by him merely took into consideration the 
value of said premises from the standpoint of the use 

4537 and adaptability of said premises for the purpose of 
raising corn. 

9th. That in the expression of said opinion as to 
values said witness was permitted to take into considera- 
tion everything which he knew about said premises until 
the date of the giving of said testimony with reference 
to the value thereof, without disclosing the basis therefor 
to the court, the jury, or counsel; but was permitted and 
required to state an opinion upon the basis of matters 


991 


which were known only to himself and not disclosed upon 
this hearing. 
10th. That said witness in the expression of an opin- 
ion was permitted to take into consideration the condi- 
tion of said premises subsequent to the date of the filing 
of the declaration herein, to-wit, the 14th day of January, 
1905, and up to and ineluding the giving of his testimony. 
11th. That the said witness in the expression of the 
opinion as to injury of premises involved herein was 
required to take into consideration all overflow of prem- 
ises described in the plaintiff’s declaration without ref- 
erence as to whether or not such overflow was caused by 
acts under the direction and control of the defendant to 
this suit; but was permitted to assume that all the in- 
jury which he claims had occurred to said premises was 
eaused by the act of the defendant herein. 
Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then and 
there duly excepted. 


The defendant, by its counsel, moved to exclude from 
the testimony in this case the testimony of Otto Halm 
upon the question of values of the premises described in 

4538 the plaintiff’s declaration for the following reasons: 
1st. That no sufficient foundation has been laid for the 
testimony of said witness, and the expression of an opin- 
ion as to the fair cash market value. 

2nd. That said witness in the giving of said testimony 
has shown no such acquaintance with the premises and 
values of real estate in that vicinity as to qualify him for 
the expression of an opinion thereon. 

3rd. That said witness did not in his expression of 
opinion state or attempt to state the fair market value of 
the premises involved. 

4th. That in the expression of such opinion said wit- 
ness has adopted an improper basis; that is to say, that 


992 


said witness has expressed an opinion as to the value of 
said premises merely from the standpoint of what the 
said land would produce for agricultural purposes with- 
out reference to its real or actual market value. 

Sth. That the said witness did not include in the esti- 
mation of the value of said premises the coal that was 
contained therein, but did exclude the same from his 
opinion and refused to consider the value thereof. 

6th. That the said witness did not exclude from the 
fair cash market value of said land the various excep- 
tions and reservations contained in the said deeds which 
have been introduced by the plaintiff in this case, for the 
purpose of attempting to prove title, but did place a value 
on said premises without regard to said exceptions or 

4539 reservations as therein contained. 

7th. That said witness refused to consider the fair 
cash market value of said premises from the standpoint 
of the highest and best use that could be made thereof. 

Sth. That said witness in the expression of opinion as 
to values given by him merely took into consideration the 
value of said premises from the standpoint of the use 
and adaptability of said premises for the purpose of rais- 
ing corn. 

9th. That in the expression of said opinion as toe 
values said witness was permitted to take into considera- 
tion everything which he knew about said premises until 
the date of the giving of said testimony with reference 
to the value thereof, without disclosing the basis therefor 
to the court, the jury, or counsel; but was permitted and 
required to state an opinion upon the basis of matters 
which were known only to himself and not disclosed upon 
this hearing. 

10th. That said witness in the expression of an opin- 
ion was permitted to take into consideration the condi- 
tion of said premises subsequent to the date of the filing 


993 


of the declaration herein, to-wit, the 14th day of Janu- 
ary, 1905, and up to and including the giving of his tes- 
timony. 
11th. That the said witness in the expression of the 
opinion as to injury of premises involved herein was re- 
quired to take into consideration all overflow of premises 
deseribed in the plaintiff’s declaration without reference 
as to whether or not such overflow was caused by act 
under the direction and control of the defendant to this 
4540 suit; but was permitted to assume that all the injury 
which he claims had occurred to said premises was 

caused by the act of the defendant herein. 
Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then and 

there duly excepted. 


The defendant, by its counsel, moved to exclude from 
the testimony in this case the testimony of George W. 
Braun upon the question of values of the premises de- 
seribed in the plaintiff’s declaration for the following 
reasons: 

Ist. That no sufficient foundation has been laid for 
the testimony of said witness and the expression of an 
opinion as to the fair cash market value. 

2nd. That said witness in the giving of said testimony 
has shown no such acquaintance with the premises and 
values of real estate in that vicinity as to qualify him 
for the expression of an opinion thereof. 

3rd. That said witness did not in his expression of 
opinion state or attempt to state the fair market value of 
the premises involved. 

4th. That in the expression of such opinion said wit- 
ness has adopted an improper basis; that is to say, that 
said witness had expressed an opinion as to the value of 
said premises merely from the standpoint of what the 
said land would produce for agricultural purposes, with 
reference to its real or actual market value. 


994 


oth. That the said witness did not include in the esti- 

mation of the value of said premises the coal that was 
4541 contained therein, but did exclude the same from his 

opinion and refused to consider the value thereof. 

6th. That the said witness did not exclude from the 
fair cash market value of said land the various excep- 
tions and reservations contained in the said deeds which 
have been introduced by the plaintiff in this ease for the 
purpose of attempting to prove title, but did place a 
value on said premises without regard to said exceptions 
or reservations as therein contained. 

7th. That said witness refused to consider the fair 
cash market value of said premises from the standpoint 
of the highest and best use that could be made thereof. 

8th. That said witness in the expression of opinion 
as to values given by him merely took into consideration 
the value of said premises from the standpoint of the 
use and adaptability of said premises for the purpose of 
raising corn. 

9th. That in the expression of said opinion as to 
values said witness was permitted to take into considera- 
tion everything which he knew about said premises until 
the date of the giving of said testimony with reference 
to the value thereof, without disclosing the basis therefor 
to the court, the jury, or counsel; but was permitted and 
required to state an opinion upon the basis of matters 
which were known only to himself and not disclosed upon 
this hearing. 

10th. That said witness in the expression of an opin- 
ion was permitted to take into consideration the condi- 
tion of said premises subsequent to the date of the filing 

4542 of the declaration herein, to-wit, the 14th day of Janu- 

ary, 1905, and up to and including the giving of his tes- 
timony. 

11th. That the said witness in the expression of the 


995 


opinion as to injury of premises involved herein was re- 
quired to take into consideration all overflow of premises 
described in the plaintiff’s declaration, without refer- 
ence as to whether or not such overflow was caused by 
acts under the direction and control of the defendant to 
this suit; but was permitted to assume that all the injury 
which he claims had occurred to said premises was 
caused by the act of the defendant herein. 
Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then and 
there duly excepted. 


The defendant, by its counsel, moved to exclude from 
the testimony in this case the testimony of Fred A. 
Mudge, upon the question of values of the premises de- 
scribed in the plaintiff’s declaration, for the following 
reasons: 

1st. That no sufficient foundation has been laid for 
the testimony of said witness and the expression of an 
opinion as to the fair cash market value. 

2nd. That said witness in the giving of said testimony 
has shown no such acquaintance with the premises and 
values of real estate in that vicinity as to qualify him 
for the expression of an opinion thereon. 

3rd. That said witness did not in his expression of 
opinion, state or attempt to state the fair market value 

4543 of the premises involved. | 

4th. That in the expression of such opinion said wit- 
ness had adopted an improper basis; that is to say, that 
said witness has expressed an opinion as to the value 
of said premises merely from the standpoint of what the 
said land would produce for agricultural purposes, with- 
out reference to its real or actual market value. 

5th. That the said witness did not include in the esti- 
mation of the value of said premises the coal that was 
contained therein, but did exclude the same from his opin- 
ion and refused to consider the value thereof. 


996 


6th. That the said witness did not exclude from the 
fair cash market value of said land the various excep- ° 
tions and reservations contained in the said deeds which 
have been introduced by the plaintiff in this case for 
the purpose of attempting to prove title, but did place a 
value on said premises without regard to said exceptions 
or reservations as therein contained. 

7th. That said witness refused to consider the fair 
cash market value of said premises from the standpoint 
of the highest and best use that could be made thereof. 

Sth. That said witness in the expression of opinion as 
to values given by him merely took into consideration 
the value of said premises from the standpoint of the use 
and adaptability of said premises for the purpose of 
raising corn. 

9th. That in the expression of said opinion as to 
values, said witness was permitted to take into consid- 
eration everything which he knew about said premises 
until the date of the giving of said testimony with refer- 

4544 ence to the value thereof, without disclosing the basis 

therefor to the court, the jury, or counsel; but was per- 
mitted and required to state an opinion upon the basis of 
matters which were known only to himself and not dis- 
closed upon this hearing. 

10th. That said witness in the expresion of an opinion 
was permitted to take into consideration the condition of 
said premises subsequent to the date of the filing of the 
declaration herein, to-wit, the 14th day of January, 1905, 
and up to and including the giving of his testimony. 

11th. That the said witness in the expression of the 
opinion as to injury of premises involved herein was 
required to take into consideration all overflow of prem- 
ises described in the plaintiff’s declaration, without ref- 
erence to whether or not such overflow was caused by 
acts under the direction and control of the defendant to 


997 


this suit; but was permitted to assume that all the injury 
which he claims had occurred to said premises was 
caused by the act of the defendant herein. 

Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then and 
there duly excepted. 

The defendant, by its counsel, moved to exclude from 
the testimony in this case the testimony of M. J. Charley, 
upon the question of values of the premises described in 
the plaintiff’s declaration, for the following reasons: 

Ist. That no sufficient foundation has been laid for 
the testimony of said witness and the expression of an 
opinion as to the fair cash market value. 

4545 2nd. That said witness in the giving of said testimony 
has shown no such acquaintance with the premises and 
values of real estate in that vicinity as to qualify him for 
the expression of an opinion thereon. 

3rd. That said witness did not in his expression of 
opinion, state or attempt to state the fair market value of 
the premises involved. 

4th. That in the expression of such opinion said wit- 
ness has adopted an improper bases; that is to say, that 
said witness has expressed an opinion as to the value 
of said premises merely from the standpoint of what 
the said land would produce for agricultural purposes, 
without reference to its real or actual market value. 

5th. That the said witness did not include in the esti- 
mation of the value of said premises the coal that was 
contained therein, but did exclude the same from his 
opinion and refused to consider the value thereof. 

6th. That the said witness did not exclude from the 
fair cash market value of said land the various excep- 
tions and reservations contained in the said deeds which 
have been introduced by the plaintiff in this case for the 
purpose of attempting to prove title, but did place a 


998 


value on said premises without regard to said exceptions 
or reservations as therein contained. 
7th. That said witness refused to consider the fair 
cash market value of said premises from the standpoint 
4546 of the highest and best use that could be made thereof. 
8th. That said witness in the expression of opinion as 
to value given by him merely took into consideration the 
value of said premises from the standpoint of the use and 
adaptability of said premises for the purpose of rais- 
ing corn. 
9th. That in the expression of said opinion as to 
values said witness was permitted to take into considera- 
tion everything which he knew about said premises until 
the date of the giving of said testimony with reference to 
the value thereof, without disclosing the basis therefor 
to the court, the jury, or counsel; but was permitted and 
required to state an opinion upon the basis of matters 
which were known only to himself and not disclosed upon 
this hearing. 
10th. That said witness in the expression of an opin- 
ion was permitted to take into consideration the condi- 
tion of said premises subsequent to the date of the filing 
of the declaration herein, to-wit, the 14th day of Janu- 
ary, 1905, and up to and including the giving of his tes- 
timony. 
11th. That the said witness in the expression of the 
opinion as to injury of premises involved herein was re- 
quired to take into consideration all overflow of premises 
described in plaintiff’s declaration, without reference as 
to whether or not such overflow was caused by acts under 
the direction and control of the defendant to this suit; 
but was permitted to assume that all the injury which he 
claims had occurred to said premises was caused by the 
act of the defendant herein. 
Which motion the court overruled; to which ruling 


999 


of the court the defendant, by its counsel then and 
4547 there duly excepted. 

The defendant, by its counsel, moved to exclude from 
the testimony in this case the testimony of Abraham 
Voorhees upon the question of values of the premsies de- 
seribed in the plaintiff’s declaration, for the following 
reasons: 

Ist. That no sufficient foundation has been laid for the 
testimony of said witness and the expression of an opin- 
ion as to the fair cash market value. 

2nd. That said witness in the giving of said testimony 
has shown no such acquaintance with the premises and 
values of real estate in the vicinity as to qualify him for 
the expression of an opinion thereon. 

3rd. That said witness did not, in his expression of 
opinion, state or attempt to state the fair market value 
of the premises involved. , 

4th. That in the expression of such opinion said wit- 
ness has adopted an improper basis; that is to say, that 
said witness has expressed an opinion as to the value of 
said premises merely from the standpoint of what the 
said land weuld produce for agricultural purposes, with- 
out reference to its real or actual market value. 

doth. That the said witness did not include in the esti- 
mation of the value of said premises the coal that was 
contained therein, but did exclude the same from his opin- 
ion and refused to consider the value thereof. 

6th. That the said witness did not exclude from the 
fair market value of said land the various exceptions and 
reservations contained in the said deeds which have been 
introduced by the plaintiff in this case, for the purpose 

4548 of attempting to prove title, but did place a value on 
said premises without regard to said exceptions or reser- 
vations as therein contained. 

7th. That said witness refused to consider the fair 


1000 


cash market value of said premises from the standpoint 
of the highest and best use that could be made thereof. 
Sth. That said witness in the expression of opinion as 
to values given by him, merely took into consideration 
the value of said premises from the standpoint of the use 
and adaptability of said premises for the purpose of rais- 
ing corn. 
9th. That in the expression of said opinion as to val- 
ues said witness was permitted to take into consideration 
everything which he knew about said premises until the 
date of the giving of said testimony with reference to the 
value thereof, without disclosing the basis therefor to the 
court, the jury or counsel; but was permitted and re- 
quired to state an opinion upon the basis of matters 
which were known only to himself and not disclosed upon 
this hearing. 
10th. That said witness in the expression of an opin- 
ion was permitted to take into consideration the condi- 
tion of said premises subsequent to the date of the filing 
of the declaration herein, to wit: the 14th day of Janu- 
ary, 1905, and up to and including the giving of his tes- 
timony. 
1ith. That the said witness in the expression of the 
opinion as to injury of premises involved herein was re- 
quired to take into consideration all overflow of premises 
described in the plaintiff’s declaration, without reference 
to whether or not such overflow was caused by acts under 
4549 the direction and control of the defendant to this suit; 
but was permitted to assume that all the injury which he 
claims had occurred to said premises was caused by the 
act of the defendant herein. 
Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then and 
there duly excepted. 


The defendant, by its counsel, moved to exclude from 


1001 


the testimony in this case the testimony of Charles 
Dooley upon the question of values of the premises de- 
scribed in the plaintiff’s declaration, for the following 
reasons: 

Ist. That no sufficient foundation has been laid for 
the testimony of said witness, and the expression of an 
opinion as to the fair cash market value. 

2nd. That said witness in the giving of said testimony 
has shown no such aequaintance with the premises and 
values of real estate in that vicinity as to qualify him for 
the expression of an opinion thereon. 

drd. That said witness did not in his expression of 
opinion state or attempt to state, the fair cash market 
value of the premises involved. 

4th. That in the expression of such opinion said wit- 
ness has adopted an improper basis; that is to say, that 
said witness has expressed an opinion as to the value of 
said premises merely from the standpoint of what the 
said land would produce for agricultural purposes, with- 
out reference to its real or actual market value. 

4550 Sth. That the said witness did not include in the esti- 
mation of the value of said premises the coal that was 
contained therein, but did exclude the same from his 
opinion and refused to consider the value thereof. 

6th. That the said witness did not exclude from the 
fair cash market value of said land the various excep- 
tions and reservations contained in the said deeds which 
have been introduced by the plaintiff in this case for the 
purpose of attempting to prove title, but did place a value 
on said premises without regard to said exceptions or 
reservations therein contained. 

7th. That said witness refused to consider the fair 
eash market value of said premises from the standpoint 
of the highest and best use that could be made thereof. 

8th. That said witness in the expression of opinion 


1002 


as to values given by him, merely took into consideration 
the value of said premises from the standpoint of the use 
and adaptability of said premises for the purpose of rais- 
ing corn. 

Sth. That in the expression of said opinion as to val- 
ues said witness was permitted to take into consideration 
everything which he knew about said premises until the 
date of the giving of said testimony with reference to the 
value thereof, without disclosing the basis therefor to 
the court, jury or counsel; but was permitted and re- 
quired to state an opinion upon the basis of matters which 
were known only to himself and not disclosed upon this 
hearing. 

10th. That said witness in the expression of an opin- 
ion was permitted to take into consideration the condi- 

4551 tion of said premises subsequent to the date of the filing 
of the declaration herein, to wit: the 14th day of Janu- 
ary, 1905, and up to and including the giving of his tes- 
timony. 

11th. ‘That the said witness in the expression of the 
opinion as to injury of premises involved herein was re- 
quired to take into consideration all overflow of prem- 
ises described in the plaintiff’s declaration without refer- 
ence to whether or not such overflow was caused by acts 
under the direction and control of the defendant to this 
suit, but was permitted to assume that all the injury 
which he claims had occurred to said premises was caused 
by the act of the defendant herein. 

Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then and 
there duly excepted. 


The defendant, by its counsel, moved the court to ex- 
clude from the consideration of the jury all evidence 
with reference to the construction of the Ogden dam or 
ditch, or other improvements therewith connected, includ- 


1008 


ing the spillway on the theory that the evidence in this 
ease shows that the construction thereof was completed 
before the year 1893 and that any cause of action thereby 
aceruing would be barred by the statute of limitations 
and that the evidence shows the same to be and constitute 
an independent and separate work. 
Which objection the court overruled; to which ruling 
of the court the defendant, by its counsel, then 
and there duly excepted. 


The defendant, by its counsel, moved to exclude from 
the consideration of the jury the testimony of each of 
4552 said witnesses, and also to exclude from the considera- 
tion of the jury plat 13, and all the deeds that have been 
offered in evidence, for the reason that the same and 
each of the same tend to create a variance between the 
allegations of the declaration and the proof offered in 
this ease; that there is not excluded from the descrip- 
tions contained in the declaration in this case the right of 
way of the Illinois Central Railroad or the C., B. & Q. 
Railroad, but that the said declaration alleges ownership 
of the entire premises without reference to said rights 
of way. | 

Which motion the court overruled; to which ruling 
of the court-the defendant, by its counsel, then and 

there duly excepted. | 


The defendant, by its counsel, moved the court to ex- 
clude the deposition of E. L. Cooley for the reason that 
EK. L. Cooley was called in person by the plaintiff and 
gave testimony in this cause upon the hearing of the 
case. 

Which motion the court overruled; to which ruling 
of the court the defendant, by its counsel, then 
and there duly excepted. 


4553 And thereupon the defendant, by its attorney, moved 
the court in writing as follows: 


1004 


STATE OF ILLINOIS, 
N SS. 
County or La SAtLte. 


In THE Crrourr Court oF La SaLLe County. 
October Term, A. D. 1912. 
La Salle County Carbon Coal Co. | 


: Us. Gen. No. 

The Sanitary District of Chicago. ) Term No. 
Now comes the defendant, The Sanitary District of 
' Chicago, at the conclusion of the taking of the evidence 
from the trial of the above entitled cause, and moves the 
court, under the first count of the declaration herein, to 
instruct the jury to return a verdict finding the defend- 
ant not guilty, and in connection herewith submits a form 

of instruction to be given to the jury. 
THE Sanitary District of CHIcAGo, 

By B. M. CHIpPERFIELD, 

Its Attorney. 


And the defendant, by its attorney, presented to and 
asked the court to read and give to the jury the follow- 
ing written instruction: 


The jury are instructed that under the law and the evi- 

dence it will he your duty, under the first count of the 

4504 declaration, to return a verdict finding the defendant 
not guilty. » 

Which said motion the court then and there over- 
ruled and denied; to which ruling of the court 
in overruling and denying said motion the defend- 
ant, by its counsel, then and there duly excepted. 


And the court then and there refused to read and give 
to the jury said instruction, and marked the same ‘‘ Re- 
fused.’’ 

To which ruling and decision of the court in refusing 
to read and give to the jury said written instruc- 
tion, and in marking the same ‘‘Refused,’’ the de- 
fendant, by its attorney, then and there excepted. 


1005 


And thereupon the defendant, by its attorney, moved 
the court in writing as follows: 


STATE OF ILLINo!s, ie 
County or La Satie. 


In THE Circuit Court or La Satue County. 
October Term, A. D. 1912. 


La Salle County Carbon Coal Co. 
Vs. Gen. No. 
The Sanitary District of Chicago. ) Term No. 


Now. comes the defendant, The Sanitary District of 
Chicago, at the conclusion of the taking of the evidence 
from the trial of the above entitled cause, and moves the 
court, under the second count of the declaration herein, 
to instruct the jury to return a verdict finding the de- 
fendant not guilty, and in connection herewith submits 

4550 a form of instruction to be given to the jury. 
THe Sanitary Districr of CHrcaco, 
By B. M. Curperrie.p, 
Its Attorney. 


And the defendant, by its attorney, presented to and 
asked the court to read and give to the jury the follow- 
ing written instruction: 

‘The jury are instructed that under the law and the 
evidence it will be your duty, under the second count of 
the declaration, to return a verdict finding the defend- 
ant not guilty.”’ 

Which motion the court then and there overruled 
and denied; to which ruling of the court in over- 
ruling and denying’ said motion the defendant, by 
its attorney, then and there duly excepted. 


And the court then and there refused to read and give 


1006 


to the jury said instruction, and marked the same ‘‘Re- 
fused.”’ 

To which ruling and decision of the court in refusing 
to read and give to the jury said written instruc- 
tion, and in marking the same ‘‘Refused,’’ the de- 
fendant, by its attorney, then and there excepted. 

And thereupon the defendant, by its attorney, moved 
the court in writing as follows: 


STATE OF [LLINOTS, Pee 
4556 County or La Satine. f°” 


In THE Crrcuir Court or La SAaLue County. 
October Term, A. D. 1912. 


La Salle County Carbon Coal Co. Canna 


The Sanitary District of Chicago. qo 

Now comes the defendant, The Sanitary District of 
Chicago, at the conclusion of the taking of the evidence 
from the trial of the above entitled cause, and moves the 
court, under the third count of the declaration herein, 
to instruct the jury to return a verdict finding the de- 
fendant not guilty, and in connection therewith submits 
a form of instruction to be given to the jury. 


Tur Sanirary Districr or Curcaco, 
By B. M. CurrerFietp, 
Its Attorney. 


And the defendant, by its attorney, presented to and. 
asked the court to read and give to the jury the follow- 
ing written instruction: 

‘The jury are instructed that under the law and the 
evidence it will be your duty, under the third count of 
the declaration, to return a verdict finding the defendant 
not guilty.’ 

Which motion the court then and there overruled and 


1007 


denied; to which ruling of the court in overruling 
and denying said motion the defendant, by its at- 
4557 torney, then and there excepted. 


And the court then and there refused to read and give 
to the jury said instruction, and marked the same ‘‘Re- 
fused.’’ 

To which ruling and decision of the court in refusing 
to read and give to the jury said written instruc- 
tion, and in marking the same ‘‘Refused,’’ the de- 
fendant, by its attorney, then and there excepted. 


And thereupon the defendant, by. its attorney, moved 
the court in writing as follows: 


STATE oF ILLINOIS, 
; SS. 
County oF La SALLe. 


In THE Crrcutr Court or La SALLe County. 
October Term, A. D. 1912. 


Gen. No. 


La Salle County Carbon Coal Co. 
Term No. 


VS. 
The Sanitary District of Chicago. 


Now comes the defendant, The Sanitary District of 
Chicago, at the conclusion of the taking of the evidence 
on the trial of the above entitled cause, and moves the 
court to instruct the jury to find the defendant not guilty, 
and in connection herewith submits a form of instruction 
to be given to the jury. 

THe Sanitary Districr or CHIcaco, 
By B. M. CuHirerrtietp, 
Its Attorney. 


And the defendant, by its attorney, presented to and 
asked the court to read and give to the jury the following 
written instruction: 


4558 ‘‘The jury are instructed that under the law and the 


1008 


evidence it will be your duty to return a verdict finding 
the defendant not guilty.’’ 

Which motion the court then and there overruled 
and denied; to which ruling of the court in over- 
ruling and denying said motion the defendant, by 
its attorney, then and there duly excepted. 

And the court then and there refused to read and give 
to the jury said instruction, and marked the same ‘‘ Re- 
fused.’’ 

To which ruling and decision of the court in refusing 
to read and give to the jury said written instruc- 
tion, and in marking the same ‘‘Refused,’’ the de- 
fendant, by its attorney, then and there excepted. 


4559-4600 Argument of Mr. Butters. 
4601-4685 Argument of Mr. Chiperfield. 
4686 Extract from argument of Mr. O’Conor. 

‘“‘T am not going to try to kiss a verdict from you, 

gentlemen. J am not going to try and love one away 

4687 from you. I don’t believe there is anybody either here 
or elsewhere that can kiss this case out of court, that 
can love itioutjor court. W) jee 

When a man stands up here before this jury and seeks 
to point to the fact that this case is being tried for the 
recovery of $200,000, he knows better, and he is simply 
trying to put the plaintiff in a false light upon false 

4688 facts. * * * 

Why it appears in this case that counsel for defend- 
ant represents the Marquette Coal Company. Can you 
imagine him raising his voice in this court room for a 
fair trial upon any issue here involving the Marquette 
Coal Company? * * * 

4689 Now, I don’t believe that when this case is over there 
is going to be any whispering on the streets of Ottawa, 
La Salle or Peru, ‘Well, if it was a farmer it would 
have been different; if it was not a coal company they 


1009 


would have got what they were entitled to; they would 
have given them what the law and the evidence would 
sustain. But that man from Canton showed to the jury 
that some of the stockholders did not live in the State 
of Illinois and he prejudiced the jury against the rights 
of the plaintiff. He further told the jury that it was a 
coal company,’ as though it hurt his throat when he was 
telling it to you, although he has clients that are in the 
coal business, that are coal companies, and then have 
people say that if it was not for these facts, if it was 
not for those circumstances and these tactics, this plain- 
tiff would have received a fair trial. * * * 

4692 The issue is plain. It is clear cut and we want you 
to accept it. If you believe in the case, as we present 
it to you, find with us, and give us what we ask for. If 
you believe in the case as presented here by this defend- 

4693 ant, you find for the defendant and don’t give us a 
nickel. Don’t give us a nickel. Don’t mess this case up. 
If you find for us, give us what we want, if you believe 
us. If you find a verdict of not guilty, wait and learn 
then what some people think about it.’’ 

Mr. CuiperFietp: I object to such a statement, if your 
honor please. 
The Court: I sustain the objection. 

4697 Mr. O’Conor: I am never ashamed of any case, gen- 
tlemen, where the defendant has to cover two or three 
states to bring carloads of witnesses, to go from the 
place where the thing actually happened to get them. 
T am never afraid of that kind of a case and never have 
to apologize for it. I might remark generally that when 
you go to the asylum at Bartonville, to prove the market 
value of farm land as a gardening proposition, I say, 
T have the right to say, why don’t you get the garden- 
ers at Peru, the men who knew the land? * * * 

4703 I knew that they would alibi this defense on every 


* * * 


1010 


proposition they could and I knew they would keep their 
own closet shut and keep its secrets from the jury. I 
knew it then and I knew when I came to close this case 
I was going to put it to you as fair men, that when 
counsel stands here and talks about fair play, when coun- 
sel stands here and talks about a fair deal, I say where 
are theirerécordséat 0) eae 

4705 They take photographs of streams, because when you 
photograph a stream there isn’t anybody that can take 
the photograph and say whether it is a foot deep or 
twenty feet. He said he couldn’t produce the witnesses. 
I know he couldn’t. They were forced to use photo- 
graphs. You were forced to surveys. You were forced 
to pictures because there wasn’t anybody that could come 
in and say what the measurements were, the depth and 
the width, without blowing these photographs and _ pic- 
tures into a million pieces. * * ™ Why did he resort 

4706 to a photograph of the Desplaines River? Draw your 
own conclusions. It is an index to this defense and shows 
its general character and you will see why he didn’t pro- 
duce the living witnesses, because they wouldn’t have 
been alive when they left the stand and they knew that, 
LOO, pa 

4707 Do you remember DeGroot here, who testified and who 
laughed on the stand like a laughing hyena; one of those 
smart witnesses; you remember him. He first said he 
didn’t know what papa was doing, although he was living 
with papa; that he didn’t know that papa was working 
for the Sanitary District, although he was living with 
papa. That is what he first said, but he was finally forced 
to admit that papa was taking gauge readings at the 
DTP era tomer ee es ee 

4711 Because Captain Cox, coming around the bend, ‘‘steam- 
boat Bill,’’ yesterday morning the last question I asked 
him, ‘‘Did it increase the rise of the river?’’ Answer: 
da GregshxehaiQyige?) le? 


1011 


4715 * * * We took plain men. We took men who lived 
there. They didn’t. They couldn’t get them. The only 
men they could preduce they didn’t produce. They didn’t 
produce men in their employ at the City of Peru and I 
aekeeyouwhy, *~ * * 

4723 * * * J am amazed because they have brought in 
so much deception. I am amazed because they have kept 
their own records so secret. J am amazed that in all 
La Salle and Peru and the surrounding country they 
could not get one or two reputable men to come here and 
sustain them. ‘That 1s what [ am amazed about. 

Let me remark that you have been advised that the 
Sanitary District of Chicago is not an institution for 
profit. I ask you in the first place what of it? Counsel 
has told you it is a great institution, it is a great work, 
and a monument to the industry of the great metropolis 
of the middle West, and I grant it. It clears their drink- 

4724 ing water, he says, takes the sewage from the streets 
and buildings down here and plants it down here. I 
grant it. 

* * * TIT cannot imagine the people of the City of 
Chicago, in the purification of their own works, in the 
building up of their own sanitation, are so niggardly, so 
miserly as not to be willing to pay the damage. Suppose 
that your children and yourselves were living there and 
this great and grand improvement was made, would you 
be unwilling to do what the law says you should do in 
fairness and honesty? That is not the spirit of the City 
of Chicago. That is not the spirit that made it great; 
that is the spirit that lives further south, not at the head 
waters of the river. 

4725 It is not an institution for profit, neither is the west 
side sewer. It is not an institution for profit and neither 
are the sewer systems of La Salle. * * * The sewer 
system of the City of La Salle is not for profit, either, 


1012 


and if they empty their sewage upon your premises, do 
you think it would be a defense that would sound manly 
to have counsel representing the city to come in and 
say, ‘‘Yes, we took your property by way of damage, 
we empty our sewage upon it, but in doing so we were 
doing good to the City of La Salle.’? I know La Salle 
too well, so far as that is concerned, when you take the 

4726 things specifically, concretely and simply, to think that 
the citizens there would stand for such a plea, and I 
know that the people of Chicago would not and do not 
know it is being made. ‘They are more honorable; they 
are more manly. It is not made for the public, this de- 
fense. Figure it if you can as a financial proposition 
and then conclude whether the Sanitary District of Chi- 
cago is pecuniary institution being operated for profit. 
The fact about it is they are selling their water power, 
selling their water power, deriving an income. That is 
the fact about it. But I simply take his argument as 
it was, admitting it is true, and I tell you men that it 
is inherently vicious and aimed at the prejudice of the 
jury. I know Chicago too well. I know the character 
of its citizens too well to believe that any such plea as 
that has their sanction or their knowledge. * * * 

4731 We will take the difference between what the land 
produced by way of revenue since 1900 and what that 
land. would have produced by way of revenue since 1900, 
if this water from Chicago was not there. That would 
amount to $100,000 easily. I will take his own figure 
from that and accept from you men three timés the 
amount that | am going to ask you for in this ease. 

4732 * * * Mike Charley might not suit the Sanitary Dis- 
trict of Chicago, but he suits the citizens of La Salle 
mighty well. They elected him as their mayor; he might 
not suit the Sanitary District of Chicago, but he suits 
us in this case as a witness and we take his valuation, 


1013 


not based on what some one told him, not based on 
facts that are not within his own knowledge, but based 
on his own experience with the land. We are willing to 
accept it. We are willing to take that testimony of Braun 
and Means, of Unzicker, of the bridge tender, of the old 
man Meyers, whom they tried to tmpeach because he 
said, ‘‘Didn’t you want to take our readings down there 
at the Peru bridge?’’ We are willing to take that kind 
of proof in this case and be bound by it and I lay it to 
you, as a proposition in this case, that when you have to 
go to Utica for a Billie Crosier, who has no knowledge 
in relation to this land, did not even see it, and who 
4733 put it north of the river, when you have got to take 
men like Pusey here at Ottawa that didn’t know any 
more about that land than I did in those days, and rely 
on that kind of proof in the face of what we produced, 
you are not in a position to come into this court room 
and tell us we have a worthless proposition. * * * 
They produced one man and I want to call your atten- 
tion to him. This man Miller, who said he saw the corn 
there last year. Mr. Chiperfield says that he does not 
want to stand with Ed Pyka. I don’t want him to. I 
want to stand with Hd Pyka and Mike Charley, I want 
to stand with Unzicker and Meyer, Means and Ream; I 
want him to stand with Miller. I want him to stand with 
DaGroot, I want him to stand with Lindner and T will 
take my chances against his. He had Miller upon the 
stand and he placed his valuation and he had to see the 
corn, he had to see it. So where did he see it last year? 
He saw it in a wagon going along Water street in Peru. 
Do you remember that? He told me it was none of my 
business and eventually the court told me he would get 
the answer for me and I got the answer from him. He 
4734 says the corn he saw was in a wagon going along Water 
street, driving east, when as a matter of fact the corn 


1014 


did not come half way up on the bluff. He is one of the 
men they bring here who claims to have seen the crops, 
the only man who claims to have seen the crops in the 
past twenty-five years. And he was caught red fisted, red 
fisted, and you men know it. And I want this defense to 

4735 stand with Miller and not to stand with our witnesses. 
* * * He did not offer any apologies for Miller, caught 
red handed here in court during the trial. He did not 
offer any explanation for Pusey, who looked over the 
mountain of weeds that were not in existence at the time 
he made his sight, his view of the land, when he esti- 
mated its value. 

4739 * * * When their witnesses come in here and place 
a valuation at from $5 to $15 for the surface, I tell you 
it is rotten. That is all there is to it. They are not 
worthy of belief, and these men admitted it, that they 
didn’t know anything about it. * * * We didn’t have 
to scurry around over the State of Illinois and take 

4740 haphazard men who didn’t know but who would hazard 
an expert opinion. For what? What are experts paid 
to testify for? Do you know what expert testimony is 
in a lawsuit? It is the life preserver. Any time that 
the ship starts to go down the call is sent out for expert 
testimony. The life preservers are put on by the attor- 
neys; the ship is foundering; they need help; the police 
boat. When they go to Champagne to these experts on 
the question of what you can do on the land and get 
expert real estate men who don’t know the condition and 
pay them, I suppose, a specified amount, they are putting 
on the life preservers, because there is nothing left. That 
is the fact in this case. It is the fact in all these cases 
and you men know it, that if this defense was on the 
square, that they would have had people down there 
come in to sustain all of the facts presented here. 

4742 * * * JT will submit it to this jury as the fairest 


1015 


proposition that was ever in court, the fairest proposi- 
tion that we have produced the biggest line of disinter- 
ested witnesses that have ever appeared in a case of 
woeekind 

4744 * * * Jf you believe in our position you give us 
what we are asking for upon the proof and I will sub- 
mit it to you as a conservative proposition that $45,000 
in damages in this case, and anything else is a defeat. 
Anything less than that is a defeat in this lawsuit and 
we don’t want you men here to take and mess up this 
ease. If you don’t believe the way we do about it, you 
say so, and we will abide by the results and take our 
ehances in the future. * * * 

4745 I am going to submit this case to you gentlemen with 
simply this, that that is the spirit of the age. That is 
the spirit that permeates court rooms today, fair deal- 
ing, honest dealing, and I ask you men along that line 
to join in with that spirit and make this case either one 
thing or another. Hither make it a lawsuit or tear it 
up. Don’t stand on any middle ground and we will abide 
by the result. I do ask you and I am candid and frank 
in saying I am interested in the result because it is a 
long case and a big case and I want to say to you men 
so conduct vourselves from now on and so consider the 
proof in this case that when it is all over there will be 
no whispers or any suggestions or anything along the line 

4746 that if other things had been done the result might have 
been different. 

TI thank you for your kindness to me throughout this 
long trial and I trust to meet all of you at some later 
date. 

4747 Whereupon the court, at the request of the plaintiff, 
read and gave to the jury the following written instruc- 
tions: 

(1) The jury are instructed that by the law under 


1016 


which the defendant is organized, it is provided, that if 
any channel is constructed by means of which any of 
the waters of Lake Michigan shall be caused to pass into 
the Desplaines or Illinois Rivers, such channel shall be 
constructed of sufficient size and capacity to produce and 
maintain at all times, a continuous flow of not less than 
300,000 cubic feet of water per minute, and to be of a 
depth of not less than fourteen feet, and a current not 
exceeding three miles per hour; and if any portion of 
any such channel shall be cut through a territory with a 
rocky stratum where such rocky stratum is above a grade 
sufficient to produce the depth of the water from Lake 
Michigan, of not less than eighteen feet, such portion of 
said channel shall have double the flowing capacity above 
provided for, and a width of not less than 160 feet at 
the bottom, capable of producing a depth of not less than 
eighteen feet of water. If the population of the district 
draining into such channel shall at any time exceed 
1,500,000, such channel shall be made and kept of such 
size and in such condition that it will produce and main- 
tain at all times a continuous flow of not less than 20,000 
eubie feet of water per minute for each 100,000 of the 
population of such district at a current of not more than 
three miles per hour. ((Given.) 
(2) While the plaintiff must prove by a preponder- 
4708 ance of the evidence in this ease that it had the legal 
title to the land in question, yet you are charged that if 
the plaintiff has proven by the greater weight of all the 
evidence in this case that it was in the open, peaceable, 
notorious and exclusive possession either by itself or ten- 
ant, of the real estate described in the declaration in 
this case on and prior to the 17th day of January, 1900, 
and up to and including the time of the trial of this suit 
and during that time paid all taxes due thereon, then 
there is sufficient proof of its title for the purposes of 


1017 


this suit in the absence of evidence tending to show that 
it does not have the legal title to said land. (Given.) 

(3) The jury are instructed that it is their duty to 
consider this case in all its bearings the same as they 
would a case between two private citizens instead of a 
case in which the plaintiff is a coal company. Coal com- 
panies are entitled to the same fair and unprejudiced 
treatment in courts of law as individuals would be under 
like circumstances. In considering and deciding this case 
the jury should look solely to the evidence for the facts 
and to the instructions of the court for the law of this 
ease and find their verdict accordingly without any refer- 
ence as to who is plaintiff or who is defendant. You 
are instructed that the instructions given to you in this 
case are the instructions of the court and the law of the 
ease which must govern you. (Guiven.) 

4749 (4) You are instructed that by the constitution of this 
state it is provided that private property shall not be 
taken or damaged for public use without just compensa- 
tion, and in this case if you believe from the evidence 
that the defendant, The Sanitary District of Chicago, has 
raised the level of the water in the Illinois River, and 
on any of the lands of the plaintiff, as charged in some 
count of the plaintiff’s declaration in any amount; and 
further believe from the evidence that the plaintiff has 
been damaged thereby as charged in the declaration or 
some count thereof; then, in that state of the proof, you 
should find the defendant guilty and assess plaintiff’s 
damages at such sum as you believe from the evidence 
plaintiff has sustained by reason of the said acts of the 
defendant, if proven as charged in the declaration. 
(Given.) } 

(5) The jury are instructed as a matter of law that 
the defendant, The Sanitary District of Chicago, under 
the statutes of the State of Illinois, is liable for all dam- 


1018 


ages to real estate within or without such district which 
shall be overflowed or otherwise damaged, by reason of 
the construction, enlargement or use of any channel, 
ditch, drain, outlet or other improvement by said Sani- 
tary District. (Given.) 

(6) You are instructed that in determining the weight 
to be given to the evidence of the different witnesses in 
this case, the jury are authorized to consider the connec- 
tion or relationship of the several witnesses to the par- 
ties if the same is proved by the evidence, their interest, 
if any is shown by the evidence in the result of the suit, 

4750 their temper, feeling or bias, if any has been shown by 
them on the trial, their demeanor while testifying, their 
apparent intelligence and their means of knowledge as 
shown by the evidence, their apparent judgment so far as 
the same is shown by the evidence, and to give such credit 
to the testimony of each witness as under all the evidence 
and circumstances in the case such witness or witnesses 
are entitled to. (Given.) 

(7) The jury are instructed that the fact that the 
number of witnesses testifying on one side is larger than 
the number testifying on the other side does not neces- 
sarily determine that the preponderance of evidence is on 
the side for which the larger number testified. (Given.) 

(8) The jury are instructed, as a matter of law, that 
while it is true that the channel and the controlling works 
and Bear Trap Dam of the Sanitary District. of Chicago 
is a lawful structure and that under the law creating said 
District the said District has the right by law to turn its 
sewage and waters from Lake Michigan down the I[llinois 
valley and into the Illinois River, yet it is further the 
law that when the said Sanitary District does so turn the 
said waters down the Illinois valley, it becomes liable 
for any and all damages to real estate occasioned by the 
said waters or sewage. (Guiven.) 


1019 


(9) You are instructed that in considering and weigh- 
ing the evidence of any witness or witnesses, that has 
been read to you from depositions, you should give such 
evidence the same weight and effect that you would if 

4751 such witnesses had been personally present and testified 
from the stand in open court in this case. (Given.) 

(10) The court instructs the jury that you are not re- 
quired to believe any statement to be a fact simply be- 
cause any witness or witnesses has or have sworn it to 
be a fact, 1f you believe from the evidence that such wit- 
ness or witnesess has or have wilfully and knowingly 
sworn falsely to such alleged fact, even if such witness 
or witnesses be not directly contradicted with respect 
to such matter by some other testimony. In considering 
this case and in passing upon your verdict you are not 
required to set aside your own common observation and 
experience as men in the affairs of life, but, on the other 
hand, you have the right, in considering the testimony 
of this case, to call to your aid your common observation 
and experience as men in the affairs of life, and you have 
the right, upon consideration of all the evidence in this 
case, in the light of your own common observation and 
experience as men in the affairs of life, to say where 
the truth lies upon any material fact in the case. (Given.) 

(11) You are instructed that if you believe from the 
evidence the defendant constructed a channel and through 
such channel caused the waters from the Chicago River 
and Lake Michigan to flow into the Desplaines River and 
thence into the Illinois River and past and upon the lands 
of the plaintiff described in the declaration or some part 

4752 thereof, and that by reason of such act of the defendant 
| such lands, or any part thereof, have been depreciated 
in their market value or damaged in such value to any 
extent whatsoever as charged in the declaration or some 
count thereof, then your duty is to find the defendant 


1020 


guilty, and return a verdict in favor of the plaintiff. 
(Given.) 

(12) The jury are instructed that in making up their 
verdict in this ease they should disregard all evidence 
and testimony which has been offered during the trial 
of this cause, and to which the court has sustained ob- 
jections, and also all testimony and evidence which has 
been admitted upon the trial of this cause and which 
has been ordered stricken out of the record by the court. 
(Given.) 

(13) The fact that the defendant built its channel and 
structures under authority of the legislature is no de- 
fense in this case to the claim of plaintiff. The act cre- 
ating the Sanitary District of Chicago makes it liable 
for all damages to adjacent lands by overflow or other- 
wise by the waters of said District, and said District had 
no right to cause to flow on plaintiff’s land any water that 
would not flow thereon in a state of nature. (Given.) 

(14) In assessing the plaintiff’s damages, if you find 
it is entitled to recover, you will regard the channel and 
structures of the defendant shown by the evidence as 
permanent structures, and you may consider what effect, 
if any, such channels and structures will have upon the 

4753 plaintiff’s land in the future. And in awarding dam- 
ages, if you find for the plaintiff, you should award it all 
damages, present, past and future, which you believe from 
the evidence will be occasioned or have been occasioned 
to the fair cash market value of the lands deseribed in 
the declaration. (Given.) 

(15) You are instructed that the defendant, the San- 
itary District of Chicago, is hable for damages if any is 
shown by the evidence to real estate of the plaintiff, which 
is overflowed or otherwise damaged, by reason of the con- 
struction or enlargement of any channel, outlet, ditch, 
drain or other improvement by said Sanitary District; 


1021 


and if you believe from the evidence that the real estate 
described in the declaration or any part of it was owned 
by the plaintiff January 17, 1900, and that on that day, 
the defendant turned a volume of water into the Des- 
plaines River, and that such water flowed then into the 
Illinois River as alleged in plaintiff’s declaration, and 
that defendant thereby overflowed and damaged plain- 
tiff’s land as alleged in its declaration, then you will find 
the defendant guilty. (Given.) 

(16) You are further instructed that in exercising 
the rights and powers granted to it, the defendant, the 
Sanitary District of Chicago, was bound to take into con- 
sideration the natural flow of water in the Desplaines 
and Illinois Rivers, and if you believe from the evidence | 
that plaintiff’s lands or any part of them, described in 
the declaration, have been damaged and injured by any 
increased flow in the Illinois River, due to waters from 

4754 the Sanitary Canal, then the defendant is liable for such 
damages. (Given.) 

(17) The court instructs the jury that even though 
they should believe from the evidence that any veins of 
coal lying underneath the surface of the land described 
in the declaration were worth, after the Sanitary District 
waters were turned into the Illinois River, as much as or 
more than they were worth before that was done, that 
fact will not deprive the owner of said land from collect- 
ing in this cause full compensation for any damages 
which may have been done to the market value of such 
land by the waters of the Sanitary District if any such 

- damage was done, as elsewhere explained in these in- 
structions. 

(18) The court by any instruction given you in this 
ease does not assume to tell you how much damage, 
if any, plaintiff is entitled to recover, but the question 
of the amount of plaintiff’s damages is left entirely to 


1022 


you under the evidence for your consideration. (Given.) 

(19) In making up your minds as to the damages, if 
any, plaintiff has sustained by reason of the turning in 
of said water as mentioned in other instructions you may 
consider all the facts and circumstances in evidence, and 
you should take into consideration the fact that the wa- 
ters of the Sanitary District of Chicago will continue to 
flow on plaintiff’s land in the Illinois River perpetually. 
(Gwen.) 

4755 (20) The jury are instructed that the measure of 
damages in this class of cases is the difference between 
the fair cash market value of the lands in dispute before 
and after the injury complained of in the declaration. 
And if the jury believe from the evidence that prior to the 
turning in of the waters of the Sanitary District January 
17, 1900, the lands in question had a fair cash market 
value, and if you further believe from the evidence that 
the waters of the Chicago River and of Lake Michigan 
on January 17, 1900, permitted by the defendant to flow 
through its channel and controlling works from the Chi- 
eago River and Lake Michigan into the Desplaines River 
and that said waters would not have flowed into the said 
Desplaines River in a state of nature, and that said wa- 
ters flowed from the Desplaines River into the Illinois 
River and down said Illinois River and in part, upon, 
over or onto the lands in question in this case, and that 
the amount of water turned from the Chicago River and 
Lake Michigan into the Desplaines River was gradually 
increased subsequent to January 17, 1900, and that the 
amount of said water continued in an increasing’ amount 
to flow into, upon and over and to saturate and flood the 
lands described in the declaration, then you are instruct- 
ed that the measure of damages in this ease is the differ- 
ence between the fair cash market value of the land in 
question just before January 17, 1900, and the fair cash 


1023 


market value thereof just after that date, as the same 
is shown by the evidence; and in estimating from the evi- 

4756 dence the fair cash market value of the lands in question 
just after January 17, 1900, the jury should take into 
consideration all the circumstances and conditions of said 
land, and effect of said waters upon said land created by 
the said waters from the Chicago River and Lake Mich- 
igan as shown by the evidence, from January 17, 1900, 
down to this date. (Given.) 

To which ruling of the court in reading and giving 
to the jury said above mentioned instructions, 
numbered 1 to 20, both inclusive, asked by the 
plaintiff, and each and every thereof, at the time 
they, and each of them, were so read and given to 
the jury, the defendant, by its counsel, then and 
there duly excepted. 


And the defendant, by its attorney, asked the court 
to read and give to the jury the following written in- 
structions: 

(21) The jury are instructed that you cannot legally 
find a verdict for the plaintiff, merely because you may 
believe from the evidence that the real estate described 
in the declaration has been overflowed by water from the 
Illinois River. 

The defendant in this case is not responsible for any 
injury done to said real estate, or any part thereof, by 
any water from the Illinois River which in a state of 
nature would overflow the same. 


4757 If the jury find from the evidence that the water which 
has overflowed the real estate claimed by the plaintiff is 
due to excessive and continued rainfall within the water- 
shed of the Illinois River and its tributaries, above said 
real estate, naturally forming a part of said river, and 
not by any act of the defendant, or from any cause under 


1024 


its control, then the plaintiff cannot recover, and you will 
find a verdict for the defendant. (Given.) 

(22) The jury are instructed that in considering the 
question of damage, if any, sustained by the real estate 
described in the declaration herein, on and shortly after 
January 17, 1900, due to any alleged act of the defendant, 

or any alleged cause under its control, you should de- 
termine from the evidence what was the fair cash market 
value of said real estate on and immediately prior to Jan- 
uary 17, 1900, as compared with its fair cash market value 
shortly after said date, as affected, if at all, by the act 
of the defendant, or any cause under its control. 

You are further instructed that in determining the 
question of the fair cash market value of said real estate, 
as aforesaid, you are not to consider the price which said 
real estate will sell for under special or extraordinary 
circumstances, but you should consider its fair cash mar- 
ket value. If sold in the open market under ordinary 
circumstances for cash, and not on time, assuming that 
the owner thereof is willing to sell for cash and the pur- 

4758 chaser thereof is willing to buy for cash. (Given.) 

(23) The jury are instructed that in this case the 
burden of proof is upon the plaintiff to show by a pre- 
ponderance of the evidence that the defendant by the con- 
struction of its drainage channel and by causing certain 
of the waters of Lake Michigan to flow through the same 
into the Desplaines and Illinois Rivers, has caused injury 
and damage to the fair cash market value of the real es- 
tate described in the declaration, and to what extent, if 
at all, the real estate described in plaintiff’s declaration 
has been by reason thereof depreciated in its fair cash 
market value. 

The jury are further instructed that if any such injury 
and damage was occasioned by the act of the defendant, 
or by any cause solely under its control, to the fair cash 


1025 


market value of the realestate described in the declaration 
such damage was caused in contemplation of law and the 
plaintiff’s cause of action accrued on the 17th day of 
January, A. D. 1900, and that such damage, if any, is 
to be determined by the fair cash market value of said 
real estate on January 17, 1900, as compared with its fair 
cash market value affected thereby shortly after January 
17,1900. (Given.) 

(24) The jury are instructed that under the law the 
plaintiff cannot recover damages for an alleged injury 
to the fair cash market value of the real estate described 
in the declaration, or any count thereof, unless the jury 
first believe from a preponderance of all the evidence in 

4759 the case that the plaintiff on the 17th day of January, 
A. D. 1900, had title thereto. 

If the plaintiff has failed to show by a preponderance 
of all the evidence in the case that it had title to the real 
estate described in its declaration on the 17th day of Jan- 
uary, A. D. 1900, or to any part thereof, then as to such 
real estate, if any, the jury should entirely disregard the 
same in deliberating upon your verdict, and should, in 
such case, only consider the evidence with reference to 
such real estate, if any, as the plaintiff has shown by a 
preponderance of the evidence it had title to on the 17th 
day of January, A. D. 1900. (Guiven.) hate 

(25) The jury are instructed that of the lands claim- 
ed by plaintiff in its declaration as originally filed in this 
cause, there has been withdrawn and eliminated there- 
from 314.81 acres, and that there only remains in the 
case to be considered by you 630.46 acres of the lands de- 
scribed in the declaration. (Guiven.) 

(26) The jury are instructed that by the term ‘‘pre- 
ponderance of the evidence’’ is meant the greater weight 
of the evidence in the case, and you are further instruct- 
ed that in every case, where a fact is asserted on one side, 


1026 


and denied on the other side, the party holding the affir- 
mative is required to prove such fact by a preponderance 
of the evidence. 

This rule of law is one which has always been enforced 
and recognized by the courts in this state, as regulating 
the decision of the jury in all controverted cases of a civil 

4760 nature, and the jury should carefully observe and follow 
such rule, in arriving at a verdict in the present case, 
and if from a consideration of all the evidence in the case, 
you do not find that the plaintiff has proved by a prepon- 
derance of the evidence the cause of action set forth in 
its declaration, or some one count thereof, then the plain- 
tiff has failed to conform to the requirements of said 
rule of law, and has failed to make out its case as re- 
quired by law, and under such circumstances, your ver- 
dict should be for the defendant. (Given.) 

(27) The jury are instructed that the same consider- 
ations are to be regarded in determining the fair cash 
market value of the real estate claimed by the plaintiff, 
as far as the same are shown by the evidence, as in the 
sale of property between private parties, the inquiry in 
each case being: What is the property worth on the mar- 
ket, viewed not merely with reference to the use to which 
it is at the time applied, but with reference to the use to 
which it is peculiarly adapted—that is to say, what is it 
worth at the time? its availability for valuable uses being 
considered. (Guiven.) 

(26) The jury are instructed that if it appears from 
the evidence that since January 17, 1900, by reason of 
an additional flow of water in the Illinois River, above 
and adjacent to the real estate claimed by the plaintiff, 
by reason of the conditions surrounding’ said real estate, 
it has become impracticable to raise field corn on said 
real estate, but that by reason of the intrinsic character 

4761 of the said real estate and its natural surroundings it 


1027 


is impracticable to successfully raise some other crop, or 
crops, thereon, then the law is that it is the duty of the 
plaintiff to devote said real estate to the best use for 
which it is adapted, and in determining the fair cash mar- 
ket value of the said real estate, it is the duty of the jury 
to consider, if the same is shown by the evidence, the 
highest and best use to which the same is shown by the 
evidence to be adapted. (Given.) 

(29) The jury are instructed that the plaintiff in this 
ease has the burden of showing by the greater weight of 
the evidence that the defendant has caused an injury and 
damage to the fair cash market value of the real estate 
described in the declaration by water flowing from Lake 
Michigan through its artificial channel into the Llinois 
River. Before the plaintiff can recover, it must show that 
such act of the defendant was the direct and proximate 
cause of the alleged injury and damage to the fair cash 
market value of the real estate described in the declara- 
tion, or some part thereof, and if in this case the condi- 
tion of the proof is such that you have to resort entirely 
to speculation or conjecture for the purpose of determin- 
ing whether the injury and damage to said real estate, if 
any is shown by the evidence, resulted from the act of 
the defendant, or from some cause under its control, or 
was occasioned by some cause entirely independent, since 
the law gives you no right to indulge in mere speculation 

4762 or conjecture in determining the cause of any injury 
to the real estate described in the plaintiff’s declaration, 
or to what extent, if any, said real estate has been dam- 
aged in its fair cash market value. (Given.) 

(30) The jury are instructed that you are the sole 
judges of the credibility of the witnesses and of the 
weight to be given to their testimony, and while in the 
present case it is competent for the witnesses to give an 
opinion as to the fair cash market value of the real estate 


1028 


described in the plaintiff’s declaration on January 17, 
1900, as compared with the fair cash market value of said 
real estate shortly after said date, and while it is your 
duty to consider all of such testimony in connection with 
all the other facts and circumstances in evidence, you are 
further instructed that you are only required to give such 
testimony such weight as you believe it is entitled to and 
you are not bound to take the opinion of any of the wit- 
nesses upon the question of the fair cash market value 
of said real estate as absolutely controlling, merely be- 
cause said witnesses have testified thereto, but you have 
the right to exercise your own judgment in determining 
from such evidence and all the other facts and circum- 
stances in proof before you, the degree of credit and 
weight to be given such testimony. (Given.) 

(31) The jury are instructed that the burden of the 
proof in this case is not on the defendant, Sanitary Dis- 
trict of Chicago, to show from the evidence that the in- 
jury and damage complained of in the plaintiff’s declara- 
tion to the real estate described therein, is not due to 

4763 some cause under its control, or to some act for which 
it is responsible, but that the burden of the proof, on the 
contrary, is upon the plaintiff in this case to show by a 
preponderance of the evidence that the alleged injury 
and damage to the real estate described in the plaintiff’s 
declaration, is caused solely by the act of the defendant, 
or is a result of some cause under its control. (Given.) 

(32) The jury are instructed that it is your duty to 
decide this case upon a consideration of all the evidence, 
the legitimate arguments of counsel applicable thereto, 
and the instructions given to you by the court as to the 
law. 

If you have any prejudice or bias against, or in favor of, 
either the plaintiff or the defendant, that may in any way 
affect your verdict, it is your duty in considering this 


1029 


case and deliberating upon your verdict, to lay any such 
prejudice or bias aside, and not to permit the same, should 
it exist, to affect or influence your verdict in any manner 
or way whatsoever. 

It is your duty to lay aside any preconceived notions 
you may have formed, not arising from the evidence in 
the case, concerning either the rights of the plaintiff or 
the defendant, and to decide this case solely from a con- 
sideration of the testimony you have heard in open court, 
the arguments of counsel and the instructions as to the 
law given by the court. 

4764 It is your duty to use your best endeavors to do full 
and complete justice between the plaintiff and the de- 
fendant under the evidence and in accordance with the in- 
structions of the court. (Given.) 

(33) The jury are instructed that in determining the 
questions involved in the present case, it is your duty 
to confine yourselves solely to a consideration of the evi- 
dence in the case and such inferences as are naturally, 
reasonably and legitimately to be drawn therefrom. 

The jury have no right and should not arbitrarily dis- 
regard any of the credible evidence in the case in arriv- 
ing at a verdict. 

It is the duty of the jury to consider all the evidence 
introduced by the plaintiff in connection with all the evi- 
dence introduced by the defendant, as applied to the con- 
tention of the plaintiff, that the real estate described in 
the declaration has been injured and damaged in manner 
and form as charged in the declaration, or some count 
thereof, by reason of the acts of the defendant, and the 
contention of the defendant that said real estate has not 
been damaged by reason of any act for which it is hable 
to respond in damages, together with the arguments sub- 
mitted by the respective counsel for the parties, in so 
far as they are applicable to the evidence and the instruc- 


1030 


tions given to you by the court, and if upon a consid- 
eration thereof the jury find the plaintiff has failed to 
prove the allegations of its declaration, or some count 
thereof, by the greater weight of the evidence, then the 
4725 jury should return a verdict for the defendant. (Given.) 
(34) The jury are instructed that by the term ‘‘fair 
cash market value,’’ applied to the real estate described 
in the plaintiff’s declaration, as used in these instruc- 
tions, is meant the sum of money which a person desir- 
ous, but not compelled to buy, and an owner willing, but 
not obliged to sell, would agree on as a price to be given 
and received therefor. (Given.) 


(35) The jury are instructed that under the law the 
burden of proof is upon the plaintiff to show that the 
injury to the fair cash market value of the real estate 
described in its declaration is the result of some cause 
under the control of the defendant, and for which it is 
responsible, and when such proof is sought to be made 
by evidence of circumstances, the circumstances must be 
such that the inference sought to be drawn therefrom is 
one which can be fairly and reasonably drawn from the 
circumstances in evidence, and if in the present case it 
does not appear from the evidence that the injury to the 
fair cash market value of the real estate described in 
the declaration, in manner and form as alleged therein, 
was caused solely as the result of some cause under the 
control of the defendant, as explained in these instruc- 
tions, then the defendant would not be liable for all dam- 
ages sustained thereto. (Given.) 


(36) The jury are instructed that in determining 
whether the real estate claimed by the plaintiff has been 
4766 permanently injured and damaged in its fair cash mar- 
ket value by reason of causes under the control of the 
defendant, in manner and form as alleged in the declara- 
tion, or some count thereof, you are not permitted to 


1031 


indulge in any conjecture or speculation as to future 
possibilities affecting said real estate, or to draw any 
inference concerning future conditions upon said real 
estate unfavorable to the defendant, unless the same 
are based upon a preponderance of all the evidence in 
the case. If the future condition of said real estate, as 
affected by causes under the control of the defendant, as 
distinguished from any effect which other causes, whether 
natural or artificial, may in the future have therein, is not 
shown by a preponderance of all of the evidence in the 
case, or cannot be reasonably gathered therefrom, then 
the jury should not consider said matter as affecting to 
any extent your verdict in case you should return a 
verdict in favor of the plaintiff. (Given.) 

(37) The jury are instructed that if it appears from 
the evidence that all of the injury and damage alleged 
to have been sustained to the real estate claimed by the 
plaintiff, since January 17, 1900, would have been sus- 
tained if the water of the Sanitary District had not been 
added to the [linois River because of the increased flow 
in said river due to the added quantities of water depos- 
ited in said river as a result of drainage operations on 
said river and its tributaries and above said lands, since 
January 17, 1900, then you will find the defendant not 
ouilty. (Given.) 

4767 (38) The jury are instructed that among the alle- 
gations of the declaration in this case, which it is incum- 
bent upon the plaintiff to support, by a preponderance 
of all of the evidence, is the one charging the defendant 
with turning and discharging or causing to be turned 
through and from its said drainage channel or canal into 
the Desplaines River, at or near the Village of Lockport, 
ereat quantities of water, to wit: 300,000 cubic feet per 
minute, more or less, in addition to the water naturally 
flowing into said river and from thence into the L[llinois 


1032 


River, thereby overflowing, permanently injuring and 
damaging the real estate claimed by the plaintiff, during 
the times referred to in said declaration, in its fair cash 
market value, and that the discharge of said water from 
the channel of the defendant, and its flowing from thence 
through the Desplaines River into the Illinois River, has 
been the cause of the alleged permanent injury and dam- 
age to the fair cash market value of the real estate claimed 
by the plaintiff. 

The jury are further instructed that in determining 
whether or not the defendant has turned and discharged 
the water aforesaid into the Illinois River as aforesaid, 
the jury should have regard solely to the evidence in the 
case bearing upon said matters, and should not indulge 
in any conjecture or speculation not based on the evi- 
dence in the case with reference thereto, and if it does not 
appear from a preponderance of the evidence in the case 
that the defendant has thereby caused injury and damage 

4768 to the fair cash market value of the real estate of the 
plaintiff, then the jury should find the defendant not 
guilty. (Given.) | 

(39) The jury are instructed that the damages which 
in any event can be recovered by the plaintiff in this 
action, in the event that you find from a preponderance 
of the evidence the plaintiff has proven the allegations of 
its declaration so as to entitle it to recover damages, is 
such sum only as will compensate the plaintiff for the 
actual loss sustained in the fair cash market value of the 
real estate which it has shown title to by reason of any 
permanent injury inflicted thereon solely by reason of 
the act of the defendant, or some cause under its control. 

The jury are further instructed that such damages, if 
any have been shown by a preponderance of the evidence, 
should in no event be greater than an amount which will 
fairly compensate the plaintiff for any permanent injury 


1033 


and damage, which is by a preponderance of the evidence 
shown to have been sustained in the fair cash market 
value of said real estate since January 17, 1900, by reason 
of some act of the defendant, or some cause under its con- 
trol. (Given.) 

(40) The jury are instructed that in the present case 
the only damage which you are authorized to consider 
is the damage, if any, which the plaintiff by a preponder- 
ance of the evidence has shown was sustained to the fair 
cash market value of the real estate described in the dec- 
laration, by reason of the acts of the defendant, or on 
account of causes solely under its control, on and shortly 

4769 after the 17th day of January, A. D. 1900, and any loss 
which the plaintiff may have sustained to any crop or 
crops on said premises by reason of high water in the 
Illinois River is not a proper element of damage for 
which there can be a recovery in the present case. (Given.) 

(41) The jury are instructed that if you believe from 
the evidence that during the years 1900 and 1901 no dam- 
age was occasioned to the fair cash market value of the 
real estate described in the declaration by reason of the 
turning into the Desplaines and Illinois Rivers on Janu- 
ary 17, 1900, of the water of the defendant, or from any 
other act of the defendant, or cause under its control, 
then the law is that the plaintiff cannot recover in this 
action any amount as damages, and your verdict will be 
for the defendant. (Given.) 

(42) The jury are instructed that the Illinois River is 
the natural recipient of all of the rainfall within the 
limits of the territory of its watershed and the watershed 
comprising its tributaries situate above the real estate 
deseribed in plaintiff’s declaration. The jury are fur- 
ther instructed that the defendant in this case is not 
responsible for any injury to, or damage accruing to the 
real estate described in the declaration herein, caused by 


10354 


any of the water flowing in the Illinois River adjacent to 
said real estate, which is the result of rainfall, or comes 
from any of the tributaries flowing into said river, or 
from any other natural source or sources whatsoever, 

4770 above the real estate described in plaintiff’s declara- 
tion not within or under the control of the defendant. 
The jury are further instructed that although you may 
believe from the evidence that the real estate claimed by 
the plaintiff has been injured by overflow from the I[li- 
nois River, and that damage to its fair cash market value 
has resulted by reason thereof, yet you would not be au- 
thorized in returning a verdict against the defendant for 
such damage, unless you further believe from a prepon- 
derance of all the evidence in the case that such overflow 
was caused by the defendant. (Guwven.) 

(43) The jury are instructed that if you believe from 
the evidence that all or any portion of the real estate 
claimed by plaintiff is, by reason of its surroundings, 
its natural advantages or its intrinsic character, adapted 
to some other use than the use to which the plaintiff has 
employed it, and that if used by the plaintiff for such 
other use the fair cash market value of said real estate, 
or the portion thereof shown to be so adapted, would 
shortly after January 17, 1900, be fully as great as shortly 
before said date, then the jury are instructed that as to 
said particular portions of such real estate the jury 
should find that no damage has been sustained thereto 
by the plaintiff. (Given.) 

(44) The jury are instructed that the verdict in this 
case will not in any manner invest the defendant with 
title to any portion of the premises described in the dee- 
laration, or divest the plaintiff of any title which it has 
thereto, and in the event you find from a preponderance 

4771 of the evidence that said premises have been perma- 
nently injured and damaged, as alleged in the declara- 


tion, by reason of some act of the defendant, or from 
some cause under its control, the jury should not disre- 
gard the fact that after the termination of this trial such 
title of the plaintiff in and to said real estate will not 
be divested by your verdict. (Given.) 

(45) The jury are instructed that although you may 
believe from the evidence that plaintiff has sustained in- 
jury and damage to the fair cash market value of the real 
estate described in its declaration from the combined 
effects of the waters of the Illinois River in a state of 
nature and the water added thereto by the defendant, 
still such proof would not authorize you in returning a 
verdict against the defendant for all of such damages. 
Before the jury would be authorized in returning a ver- 
dict for the plaintiff because of any injury or damage oc- 
easioned for the plaintiff because of any injury or damage 
occasioned to the fair cash market value of the real estate 
claimed by it, it must appear from a preponderance of 
the evidence what part of the total damage sustained 
thereto, if any was sustained, is attributable to the acts of 
the defendant, or chargeable to causes solely under the 
control of the defendant, to the exclusion of all other 
causes whatsoever. (Refused.) 

(46) The jury are instructed that if you believe from 
the evidence that floods and freshets in the Illinois River 
have injured and damaged the real estate claimed by the 
plaintiff, in its fair cash market value, to the full extent 

4772 described in the declaration herein, and that the injury 
and damage so sustained was not caused by any act of 
the defendant, or from any cause under its control, then 
such injury and damage, if any has been shown, creates 
no liability on the part of the defendant in this case to 
compensate the plaintiff for any loss occasioned thereby, 
and the jury will not be authorized under any such cir- 
cumstances in finding a verdict in favor of the plaintiff, 


1036 


but it will be your duty to return a verdict for the de- 
fendant. (Refused.) 

(47) The jury are instructed that in case you should 
determine from the evidence to return a verdict in favor 
of the plaintiff, then in determining the difference, if any, 
in the fair cash market value of the premises described 
in the plaintiff’s declaration shortly after January 17, 
1900, as compared with the fair cash market value there- 
of, it will be proper for you to take into consideration, if 
the same is disclosed by the evidence, to what extent, if 
at all, the fair cash market value of said real estate will 
be depreciated: by reason of any mining operations rea- 
sonably to be anticipated of the plaintiff to be conducted 
beneath the surface of said real estate, and whether or 
not the mining and removal of coal from said premises 
by the plaintiff will have a tendency to cause the surface 
of said premises to subside so as to cause the surface 
thereof to become less valuable for any purpose which it 
is by the evidence shown to be adapted. (Re/used.) 

(48) The jury are instructed that in determining the 
fair cash market value of the real estate claimed by the 

4773 plaintiff, on or about January 17, 1900, as affected by 
the acts of the defendant or some cause under its control, 
the jury should consider, if the same appears from the 
evidence, whether or not by reason of mining operations 
conducted beneath the surface of said premises, there 
has been thereby occasioned any surface subsidence, and 
if the jury find from the evidence that the surface of said 
real estate has subsided because of said mining opera- 
tions, then the jury should determine to what extent, i 
at all, the fair cash market value of said real estate on 
said date had been depreciated by reason thereof, and in 
determining what, if any, injury and damage has been 
inflicted upon said real estate by the defendant as alleged 
in the plaintiff’s declaration, the jury should be careful 


1037 


to distinguish between the damage, if any, caused by the 
surface subsidence of said real estate, provided you find 
from the evidence that the surface of said real estate has 
subsided, by reason of any of the matters aforesaid, and 
any injury occasioned to said real estate by the act of 
the defendant, or from some cause under its control, as 
the defendant in this suit is only Hable to respond in dam- 
ages for injury inflicted as a result of its own act, or some 
eause under its control. (Refused.) 

(49) The jury are instructed that the question of 
injury to, or loss of crops, pasture, rents, issues and 
profits, of the real estate described in the declaration, is 
not before you for your consideration, and it will there- 

4774 fore be improper for you to consider any of said ques- 
tions in deliberating upon your verdict in this case. The 
plaintiff in this action can recover, if at all, only for a 
permanent injury and damage to the fair cash market 
value of the real estate described in the plaintiff’s dec- 
laration, which it is shown to have been the owner of, on 
the 17th day of January, 1900, arising from some act of 
the defendant, and not for an injury to the mere pos- 
session of said real estate. (Refused.) 

(50) ‘The jury are instructed that the damages alleged 
to have been sustained to the fair cash market value of 
the real estate described in the plaintiff’s declaration, 
solely. by reason of the acts of the defendant, or from 
eauses under its control, on or about January 17, 1900, 
cannot be increased nor diminished in amount by evi- 
dence of any act or acts after the lapse of a short time 
subsequent thereto, and if there has been admitted in evi- 
dence any testimony which shows, or tends to show, that 
the alleged damage sustained by the plaintiff to the fair 
eash market value of said real estate on January 17; 
1900, are due to the inability since said time to plant, 
cultivate or harvest crops on said real estate, the jury 


1038 


should entirely disregard said testimony for the purpose 
of enhancing or aggravating the amount of damages al- 
leged to have been sustained by plaintiff, to the fair 
cash market value of said real estate on January 17, 1900. 
(Refused.) 
(51) The jury are instructed that where an action is 
4775 brought to recover damages for an alleged permanent 
injury to real estate by reason of the construction of a 
public improvement, where none of said real estate has 
been actually taken, the law is that a recovery cannot be 
had unless the real estate claimed to have been damaged 
has become depreciated in value by the construction of 
said public improvement, and if the fair cash market 
value of the real estate is as much shortly after the con- 
struction of the improvement as it was before such im- 
provement was constructed, then the law is that no dam- 
age has been sustained and no recovery can be had. If 
in the present case it appears from the evidence that on 
January 17, 1900, the defendant had completed its chan- 
nel and commenced to discharge therefrom into the Des- 
plaines River, and from thence into the Illinois River, 
water therefrom, and that the said channel of the de- 
fendant was of a permanent character, and is a lawful 
structure as explained in these instructions, and that by 
the use and operation thereof the real estate described in 
the plaintiff’s declaration sustained no injury and was 
not damaged in its fair cash market value by reason 
thereof, from said date down to the commencement of 
this suit, then the law is there could be no recovery in 
the present case against the defendant. (Refused.) 

(52) The jury are instructed that the defendant is 
not. liable for and cannot be held responsible for any in- 
jury and damage inflicted upon the real estate claimed by 
the plaintiff by the water from the Illinois River, or its 
tributaries, which was not added thereto and placed there- 


1039 


4776 in by the defendant, and although you may believe from 
a preponderance of the evidence that the water of the 
Illinois River has been increased to some extent in vol- 
ume, depth or width, as a result of the acts of the de- 
fendant, nevertheless, you would not be authorized in 
returning a verdict against the defendant because there- 
of, unless it further appears from a preponderance of 
all the evidence in the case to what extent, if any, and 
how much, if at all, said river is so increased in depth, 
width or volume, by reason of such increased flow, and 
that the real estate claimed by the plaintiff has been 
damaged in its fair cash market value by reason of water 
added to said river by the acts of the defendant, and in 
deciding these questions you have no right to guess at 
the result, to speculate upon the probabilities of the case, 
nor to draw any inference concerning the same, not sup- 
ported by the evidence in the case, but you must confine 
yourselves solely to the evidence in the case and to the 
legitimate inferences to be drawn therefrom, in reaching 
a verdict, and if after a careful consideration thereof 
it does not appear from a preponderance of all the evi- 
dence in the case to what extent, if any, and how much, 
if at all, the real estate claimed by the plaintiff has been 
injured and damaged by reason of the acts of the de- 
fendant, or from causes under its control, you will find 
the defendant not guilty. (Refused.) , 

(53) The jury are instructed that the defendant is 
not liable for any alleged injury to the real estate claimed 
by the plaintiff, unless it first appears from a prepon- 

4777 derance of all the evidence in the case that the real estate 
described in the plaintiff’s declaration has been depreci- 
ated in its fair cash market value, as alleged in the dec- 
laration, as a result of some cause shown to be under the 
eontrol of the defendant. If the evidence in the case dis- 
closes both injury and damage to the real estate described 


1040 


in the declaration produced by causes not shown to be 
under the control of the defendant, or if the evidence 
upon the question as to what it was, if anything, that has 
caused the injury and damage alleged to have been sus- 
tained as to the fair cash market value of the real estate 
claimed by the plaintiff, is in such a condition that there 
is Just as much evidence tending to show that the alleged 
injury and damage was produced by causes not under the 
control of the defendant, as there is evidence tending to 
show that such injury and damage was occasioned by the 
defendant, then, in that state of the proof, the plaintiff 
has failed to make out its case by a preponderance of all 
the evidence, as required by law, and in either event your 
verdict should be for the defendant. (Refused.) 

(54) The jury are instructed that in determining 
whether the plaintiff has shown by a preponderance of 
all the evidence in the case that the real estate described 
in its declaration has been injured and damaged in its 
fair cash market value, as alleged in said declaration, by 
reason of the acts of the defendant, or from causes under 
its control, you should take into consideration, if such 
fact is shown by the evidence in the case, in connection 

4778 with all the other evidence, facts and circumstances, 
all evidence relating to the effect of the water in the Illi- 
nois River at all stages of water upon the real estate 
claimed by the plaintiff, and if you believe from the evi- 
dence in the ease that the elevation of the surface of the 
real estate claimed by the plaintiff was such prior to 
January 17, 1900, and before the addition of any water 
to said river by the defendant, the real estate claimed by 
the plaintiff was as frequently overflowed and as contin- 
uously submerged by the waters of the Illinois River as 
they have been at any time since said date, and that none 
of the causes under the control of the defendant, or any 
act of the defendant, has caused any additional injury 


1041 


or damage to the fair cash market value of said real estate 
since said date, by overflowing the same, then the plain- 
tiff cannot recover, and you will find a verdict for the 
defendant. (Refused.) 

(55) The jury are instructed that the defendant is 
only required to respond in damages for injuries inflicted 
by acts performed by it, or from causes under its con- 
trol; therefore, in the present case, if it is not shown by 
a preponderance of the evidence that the defendant has 
eaused the injury and damage, or some part thereof, to 
the real estate claimed by plaintiff, in manner and form 
as alleged in the declaration, by reason of its own act, or 
from causes under its control, then the law requires you 
to return a verdict for the defendant, and it makes no 
difference whether you believe from the evidence in this 

4779 case that the real estate claimed by the plaintiff, or some 
part thereof, has or has not been injured and damaged in 
its fair cash market value by some independent act or 
cause under the control of the defendant, such as rainfall 
on the watershed of the Illinois River and its tributaries 
above said real estate, or the prosecution of drainage op- 
erations upon lands within the watershed of the Illinois 
River, or its tributaries, above said real estate, affecting 
the discharge of surface water into any thereof, or from 
any other natural or artificial cause whatsoever, as the 
law does not require the defendant to respond in damages 
by reason thereof, but only holds it responsible for dam- 
age occasioned by its own acts, or from causes under its 
control. (Refused.) 

(56) The jury are instructed that if it appears from 
the evidence that the plaintiff has at any time since Jan- 
uary 17, 1900, made any statement or declaration as to 
the value of the real estate described in the real estate, 
or any part thereof, then the jury are instructed that you 
have a right to regard such statement or declaration as 


1042 


binding upon the plaintiff in determining the fair cash 
market value of the deal estate claimed by the plaintiff. 
(Refused.) 

(57) The jury are instructed that in determining the 
fair cash market value of the real estate claimed by the 
plaintiff, immediately before and shortly after January 
17, 1900, that you should disregard all testimony, if any 
there be, as to the fair cash market value of said prem- 
ises at either of said times, based upon what the witnesses 
testifying said he would personally give or be unwilling 
to give for said premises, or any part thereof. (Re- 
fused.) 

(58) The jury are instructed that real estate is 
not to be deemed worthless because the owner allows 
it to go to waste or to be regarded as valueless because 
he is unable to put it to any use. : Its availability for 
valuable uses and not its present employment is the eri- 
terion from which its fair cash market value is to be 
determined. (Refused.) 7 

(59) The jury are instructed that the defendant has 
the right under the laws of ‘the State of Illinois to cause 
an additional flow of water in the Illinois River, by dis- 
charging water from its channel into the Desplaines River 
and that in the exercise of such rights no presumption 
should be indulged in by the jury that by reason thereof 
such act has caused any of the damage alleged in the 
plaintiff’s declaration, unless it first appears from a pre- 
ponderance of all the evidence in the case that such is 
the fact. The defendant under the law is liable only for 
its own act, and is responsible only for any damage occa- 
sioned by the water added by it, to the water already in 
the [lhnois River, no matter from what source it came, 
and in determining to what extent (if at all) the pre- 
ponderance of the evidence discloses that the real estate 
described in the plaintiff’s declaration has been injured 


1045 


and damagedinits fair cash market value, the jury should 
distinguish between the damage (if any) inflicted by the 
water in the Illinois River in a state of nature, and the 

4781 damage (if any) occasioned by the water added to said 
river by the defendant, if the amount of water added to 
the river by the defendant is shown by a preponderance 
of all of the evidence in the case, and if the jury from 
the evidence are unable to say from a preponderance 
thereof that the defendant has caused injury and damage 
to the fair cash market value of the real estate described 
in the declaration, then the plaintiff cannot recover in 
this action, and the jury should find a verdict for the 
defendant. (Refused.) 

(60) The jury are instructed that the defendant has 
the legal right to discharge through the Desplaines River 
into the Illinois River all of the water which it is shown 
by the evidence it has discharged, and that none of the 
acts of the defendant in this respect are wrongful, ille- 
gal, unjust, wilful, negligent, or in violation of any duty 
owing by it to the plaintiff, and that the jury have no 
right to return a verdict against the defendant in the 
present case merely because you may believe that the 
acts of the defendant complained of are either wrongful, 
illegal, unjust, wilful, neghgent, or in disregard of the 
rights of the plaintiff. (Refused.) 

(61) The jury are instructed that it is your duty to 
consider whether the injury complained of in the plain- 
tiff’s declaration is or was occasioned by the waters con- 
tained in the Illinois River in a state of nature, no mat- 
ter whether the same were there deposited as a result of 

4782 rainfall upon the watershed of said Illinois River and its 
tributaries, or as a result of drainage operations con- 
ducted in, along, or upon any or either of the same, pro- 
vided such facts are disclosed by the evidence, and if it 
appears from the evidence that all of the damage to the 


1044 


real estate described in the plaintiff’s declaration was 
occasioned by the water contained in said Illinois River 
in a state of nature, as distinguished from any waters 
placed therein by the defendant, then the law is that the 
defendant is not required in this action to respond in 
damages for any injury or damage to the fair cash mar- 
ket value of the real estate described in the plaintiff’s 
declaration. (Refused.) 

(62) The jury are instructed that in determining the 
fair cash market value of the real estate described in the 
plaintiff’s declaration on and shortly before January 17, 
1900, as compared with the fair cash market value there- 
of after January 17, 1900, you should take into consid- 
eration all of the uses of which the said real estate is 
susceptible, provided the same are shown by the evidence 
in the case; and if it appears from the evidence in the 
ease that the said real estate is underlaid with one or 
more veins of bituminous coal of the same kind as are now 
being mined in the vicinity of the said real estate by the 
plaintiff, and that said real estate is so situated with 
reference to the mines of the plaintiff as to render thé 
mining and removing of said coal from said mine of the 
plaintiff practicable, and that the plaintiff has the right 

4783 to mine and remove said coal, such matters would be 
proper for you to consider in connection with all the 
other evidence in the case, in determining therefrom 
what was and is the fair cash market value of said real 
estate. (Refused.) 

(63) The jury are instructed that in case you should 
determine from the evidence to return a verdict in favor 
of the plaintiff, then in determining the difference, if any, 
in the fair cash market value of the premises described 
in the plaintiff’s declaration, shortly after January 17, 
1900, as compared with the fair cash market value there- 
of on and shortly prior to said date, it will be proper for 


1045 


you to take into consideration, if the same is disclosed 
by the evidence, to what extent, if at all, the fair cash 
market value of said real estate has been depreciated by 
reason of any mining operations of the plaintiff, con- 
ducted beneath the surface of said real estate, and 
whether or not the mining of coal from said premises has 
a tendency to cause the surface of said premises to sub- 
side, so as to cause the surface thereof to become less 
valuable for any purpose which it is shown by the evi- 
dence of the same is adapted. (Refused.) 

(64) The jury are instructed that in determining the 
fair cash market value of the real estate described in 
the plaintiff’s declaration, it is proper for you to take 
into consideration, in connection with all the other evi- 
dence in the ease, all of the testimony, if any there be, 
showing sales of similar lands similarly situated on or 
about January 17, 1900, and you should give such evi- 

4784 dence, if any there be, such weight as you deem it fairly 
to be entitled to, in determining the question as to what 
the fair cash market value of the real estate involved 
herein on January 17, 1900, actually was. (Refused.) 

(65) The jury are instructed that in determining the 
fair cash market value of the premises claimed by the 
plaintiff on January 17, 1900, or shortly before or shortly 
after said date, you should disregard all testimony in the 
record, if any there be, which rests solely upon the size 
of the crops raised at any given period on said land, un- 
less from such testimony or from other credible evidence 
or facts and circumstances in evidence it appears what 
were all of the conditions surrounding said premises at 
said time, with respect to all such matters as within the 
experience of the jury are known to influence the raising 
of crops on the lands in question. (Refused.) 

(66) The jury are instructed that unless it appears 
from a preponderance of all the evidence in the case that 


1046 


the water under the control of the defendant, when added 
to the waters of the Illinois River, has inflicted all of the 
injury and damage to the fair cash market value of the 
real estate described in the declaration, then the plaintiff 
cannot recover of the defendant for all of such injury 
and damage, even although the evidence may disclose 
and the jury may believe that the defendant is in part 
responsible therefor. 

The jury are further instructed that in no event can 
the plaintiff recover damages from the defendant unless 

4785 it is first shown by a preponderance of the evidence 
what part of such damage, if any, is due to or arises from 
the acts of the defendant, or from causes under its con- 
trol, and if it does not appear by a preponderance of all 
the evidence in the case to what extent (if at all) the acts 
of the defendant, or causes under its control, have pro- 
duced the alleged damage of which the plaintiff com- 
plains, then and in that state of the proof the plaintiff 
cannot recover, and the jury should find the defendant 
not guilty. (Refused.) 

(67) ‘The jury are instructed that if it appears from 
the evidence that any of the injury alleged to have been 
caused to the real estate claimed by the plaintiff since 
January 17, 1900, has been occasioned by drainage opera- 
tions upon the watershed of the Illinois River, and that as 
a result thereof the rainfall within the territory compris- 
ing the watershed of the Illinois River is more rapidly 
collected and conveyed into the tributaries of said river 
above the point where the real estate claimed by the 
plaintiff is located, so that the same when emptied into 
the said Illinois River is with greater rapidity carried 
down said river to a point opposite the real estate claimed 
by the plaintiff, causing the waters in said river to rise 
and overflow said real estate independent of any act of 
the defendant, or any cause under its control, then the 


1047 


law is if you find the facts aforesaid from the evidence 
in this ease, that the defendant would not be liable to 
respond in damages to the plaintiff for any injury or 
damage occasioned thereby. (Refused.) 

(68) The jury are instructed that under the law and 

4786 the evidence you will find the defendant not guilty un- 
der the first count of the declaration. (Refused.) 

(69) The jury are instructed that under the law and 
the evidence you will find the defendant not guilty under 
the second count of the declaration. (Refused.) 

(70) The jury are instructed that under the law and 
the evidence you will find the defendant not guilty under 
the third count of the declaration. (Refused.) 

(71) The jury are instructed that if you believe from 
a preponderance of the evidence that the plaintiff has 
sustained injury and damage to the fair cash market 
value of the real estate described in the declaration 
caused solely by the acts of the defendant, or by causes 
under its control, then, in determining the amount of any 
such damage, or the extent thereof, if the same is shown 
by a preponderance of the evidence, the jury are. in- 
structed that the plaintiff would only be entitled to re- 
cover as damages the difference between the fair cash 
market value of said real estate just before the 17th day 
of January, 1900, as compared with the fair cash market 
value of said real estate just after said date. (Refused.) 

(72) ‘The jury are instructed that under the law the 
defendant is only required to respond in damages for 
its own act, or because of some cause under its control, 
and the defendant is entitled, in the consideration of the 

4787 evidence in this case, in case the jury find from the 
| evidence that the fair cash market value of the real estate 
claimed by the plaintiff is depreciated in value, as com- 
pared with its fair cash market value on the 17th day of 
January, 1900, to the benefit of all such depreciation 


1048 


shown by the evidence to have been caused by any act, 
series of acts, cause or combination of causes, independ- 
ent of any act of the defendant, or cause under its con- 
trol, and is entitled to have all of said matters, if any 
are disclosed by the evidence, ascertained, and the fair 
cash market value of said real estate, as affected thereby, 
determined, before the jury will be authorized to con- 
sider what additional damage, if any, has been occasioned 
thereto by reason of any act of the defendant, or from 
any cause under its control. (Refused.) 

(73) The jury are instructed that if you believe from 
the evidence that by reason of mining operations under 
the surface of the real estate described in the plaintiff’s 
declaration the surface of said real estate has subsided 
and fallen, and been lowered in elevation to a point where 
under ordinary conditions in the Illinois River, without 
the addition of any water thereto, placed therein by rea- 
son of any act of the defendant, or cause under its con- 
trol, all, or some part thereof, has since January 17, 1900, 
become submerged and permanently injured and dam- 
aged, and thereby rendered unfit for the purpose of rais- 
ing crops thereon, then the jury are instructed, if you 
find the facts aforesaid from the evidence, there could 

4788 be no recovery in the present case against the defendant 
by reason of any damage sustained on account of over- 
flow of said real estate by the waters of the Illinois 
River. (Refused.) 

(74) The jury are instructed that the present suit 
was commenced on January 14, 1905, to recover for an 
alleged permanent injury and damage to the real estate 
described in the plaintiff’s declaration, in manner and 
form as alleged therein, and that under the law the 
jury will have no right to consider the question of any 
permanent injury or damage to the market value of said 
real estate since the date of the commencement of said 
suit. (Refused.) 


1049 


(75) The jury are instructed that if it appears from 
the evidence, or from a lack of evidence, that any portion 
of the real estate described in the plaintiff’s declaration 
was not injured and damaged in its fair cash market 
value on or shortly after January 17, 1900, by reason of 
any act of the defendant, or from any cause under its 
control, that you should, in deliberating upon your ver= 
dict in this case, carefully exclude from your considera- 
tion such portion of said real estate as is not shown by 
a preponderance of the evidence to have been damaged in 
its fair cash market value as aforesaid, in determining 
to what extent (if at all) the remaining portion (if any) 
of said real estate was injured and damaged in its fair 
cash market value on or shortly after January 17, 1900, 

4789 solely by reason of some act of the defendant, or some 
cause under its control, if the same appears from a pre- 
ponderance of the evidence to have been injured and dam- 
aged in its fair cash market value on or shortly after 
January 17, 1900, as alleged in the plaintiff’s declaration, 
in estimating the amount of damages (if any) to which 
plaintiff is entitled. (Refused.) 

(76) The jury are instructed that if you believe from 
the evidence that on January 17, 1900, or any date since 
said date, the defendant has discharged a quantity of 
water into the Illinois River, and that the water so dis- 
charged into the Illinois River by the defendant has oc- 
easioned no injury or damage to the fair cash market 
value of the real estate claimed by the plaintiff, but that 
by reason of rainfall within the watershed of the Illinois 
River, or within the watershed of its tributaries above 
said real estate, or from any other natural causes, said 
real estate was thereby overflowed and damage was there- 
by inflicted to the fair cash market value thereof, to the 
extent shown by the proof in the present case, then the 
jury are instructed that the defendant is not liable there- 


1050 


for, and you would not be authorized in returning a ver- 
dict assessing damages against the defendant. (Re- 
fused.) 

77. The jury are instructed that proof of the fair cash 
market value of the real estate described in the plain- 
tiff’s declaration shortly before the 17th day of Janu- 
ary, 1900, and proof that the fair cash market value 
thereof has depreciated since the 17th day of January, 
1900, does not in and of itself constitute proof of any 

4790 damage to said real estate on account of any act of the 
defendant, or by reason of any cause under its control, 
and uniess the jury are able to determine from a pre- 
ponderance of the evidence that any depreciation in the 
fair cash market value of the real estate of the plaintiff 
has been caused by some act of the defendant, or some 
cause under its control, since the 17th day of January, 
A. D. 1900, it will be your duty to return a verdict in 
favor of the defendant. (Refused.) 

(78) The jury are instructed that in determining 
whether the plaintiff has shown by a preponderance of all 
the evidence that it has sustained the injury and dam- 
age to the fair cash market value of the real estate de- 
scribed in its declaration, or some part thereof, as al- 
leged therein, as a result of the acts of the defendant, 
or from causes under its control, it will be proper for 
you to take into consideration, in connection with all the 
other evidence in the case, the evidence, if any there be, 
relating to the condition of the real estate claimed by 
the plaintiff prior to January 17, 1900, and if you believe 
from. such evidence, if any there be, in connection with 
all the other credible evidence, facts and circumstances 
in the case, that said real estate had always in times of 
high water in the Illinois River prior to January 17, 1900, 
and without the addition to said river of any water added 
thereto by the defendant, been subject to overflow and was 


1051 


overflowed, and since January 17, 1900, that the water 
under the control of the defendant, when added to the 
water otherwise in said river, is not by a preponderance 

4791 of the evidence shown to have caused any additional 
injury or damage to said real estate, then the plaintiff 
cannot recover in this action, and the jury will return a 
verdict for the defendant. (Refused.) 

(79) The jury are instructed that of the lands claimed 
by plaintiff in its declaration as originally filed in this 
cause there have been withdrawn and eliminated there- 
from 309.06 acres, and that there only remains to be con- 
sidered by you 636.21 acres of the lands described in the 
declaration. (Refused.) 

(80) The jury are instructed that in determining the 
question whether the plaintiff has shown by a prepon- 
derance of the evidence that it has sustained injury and 
damage, as alleged in its declaration, to the fair cash 
market value of the real estate described therein, or some 
part thereof, by reason of some act of the defendant, or 
from some cause under its control, you should take into 
consideration, if you find it is disclosed by the testimony, 
all evidence relating to the condition of the real estate 
described in the declaration shortly prior to January 17, 
1900, in connection with all the other facts and circum- 
stances disclosed by the proof, and if you believe there- 
from that all of the injury and damage to the fair cash 
market value of said real estate since said date was 
caused by natural causes, independent of any water added 
to said river by the defendant, such as rainfall in the 
territory drained by the Illinois River and its tributar- 

4792 ies, above said real estate, causing and producing con- 
tinued high water in said river, and consequent overflow 
of the real estate claimed by plaintiff, independent of any 
act of the defendant, or any cause under its control, 
thereby producing all the injury and damage of which 


1052 


the plaintiff complains in its declaration, or if the evi- 
dence with reference to the causes which have produced 
the injury and damage of which the plaintiff complains 
is so evenly balanced that you cannot say therefrom that 
the plaintiff has shown by a preponderance of all the 
evidence in the case that the injury and damage com- 
plained of to the fair cash market value of said real 
estate, or some part thereof, is due to the act of the de- 
fendant, or to some cause under its control, then the 
plaintiff cannot recover and you will find the defendant 
not guilty. (Refused.) 

Whereupon the court, at the request of the defendant, 
read and gave to the jury said above mentioned instruc- 
tions numbered, respectively, 21 to 44, both inclusive, 
and each and every thereof, as asked by the defendant. 

But the court then and there refused to read and give 
to the jury said above mentioned instructions asked by 
the defendant and numbered, respectively, 45 to 80, both 
inclusive, and each and every thereof, and wrote on the 
margin thereof the word ‘‘ Refused’’ and additional words 
as above indicated. | 


To which ruling of the court in refusing to read and 
give to the jury said instructions above mentioned, num- 
bered, respectively, 45 to 80, both inclusive, and each and 

4793 every thereof, asked by the defendant, and in marking 
upon the margin of each thereof the word ‘‘ Refused,’’ 
and the additional words above shown, the defendant, by 
its counsel, then and there duly excepted. 


Thereupon the court read and gave to the jury the 
following forms of verdict: 

The Court: As to forms of verdict. If the jury find 
the defendant guilty, the form of your verdict may be as 
follows: 


‘We, the jury, find the defendant guilty, and assess 


1053 


plaintiff’s damages at the sum of (here insert such sum 
as you may find from the evidence).”’ 

If the jury find the defendant not guilty, the form of 
your verdict may be as follows: 

‘‘We, the jury, find the defendant not guilty.’’ 

Write out your verdict on a separate sheet of paper and 
each sign it. 

To which ruling and decision of the court in reading 
and giving to the jury the above mentioned forms of ver- 
dict, and each and every thereof, the defendant, by its 
attorney, then and there duly excepted. 

The Court: The court has prepared two separate 
forms of verdict for you and they are on this buff or 
yellow paper attached to the instruction as to the form 
of your verdict. After you have agreed among yourselves 
on the verdict that you wish to return you may then use 
one of these forms on this yellow paper that corresponds 

4794:-to your finding. That will save you writing out the 
form of your verdict yourself. You are at liberty to use 
one of the forms written out by the court and furnished 
you, the one that agrees with your finding. 

When you have agreed upon your verdict, if the court 
happens to be in session at the time, you may return it 
into open court. If you agree upon a verdict when the 
court is not in session you may seal it up in an envelope 
that will be delivered to you by your bailiff and all sign 
it and then meet the court in the morning at 9 o’clock, 
when your verdict will be opened and read in your pres- 
ence. All be there. 

It may be that I will not be present when you shall 
have agreed upon your verdict; in that case Judge Hl- 
dredge will receive your verdict and discharge you. I 
will take this occasion, therefore, of saying good-by to 
you again; it may be the last farewell I will extend to you 
during this trial. In case that is so, I wish to express my 


1054 


thanks to you and my good wishes for your future happi- 
ness and your families. I feel as if it was more than a 
mere acquaintance between court and jury on account 
of being together so long; there is a sort of feeling, on 
my part at least, of friendship and I want to express 
that feeling to you. T hope I will meet you all some time 
again after the case is over. 

I will say good-night to you again once more; it is per- 
haps the last time in this trial. You may go now with 
the officer. 


4795 Thereupon the jury retired to consider of their ver- 
dict, and after deliberation thereon had, returned into 
court their verdict as follows: 


‘‘We, the jury, find the defendant guilty, and assess 
plaintiff’s damages at the sum of thirty-five thousand 


dollars. 
(Signed) Wm. McExroy, 
Foreman; 
EK. J. Laniaan, 


JoHN L. Dwyer, 
THomas GoTcH, 

JAMES GREEN, 

JAMES DuNLAP, 

GEORGE COULSON, 
JoHN WALZER, 

JOHN L. FRANGENBERG, 
Curist SCHRUMPH, 
FreD WEBERLING, 
JoHN VoIPpuND.”’ 


And afterwards, to wit: upon the 11th day of Decem- 
ber, A. D. 1912 (the same being one of the days of the 
said October term of said court for the year aforesaid), 
the defendant, by its attorney, moved the court to set 
aside the verdict of the jury in said cause and for a new 
trial, and afterwards, to wit: upon the 12th day of De- 


1059 


cember, A. D. 1912, filed in said court in said cause its 
written motion for a new trial and its points in writing, 
particularly specifying the grounds of such motion in 
the words and figures following, to wit: 


4796 Strate or ILuinois, nie 7 
County or La SALLe. 


In THE Circuit Court. 


October Term, A. D. 1912: 


The La Salle County Carbon Coal 
Company, a corporation, 
Plaintiff, 
VS. Case. 
The Sanitary District of Chicago, 
a municipal corporation, 
Defendant. 


Now comes the defendant, The Sanitary District of 
Chicago, by Chiperfield & Chiperfield, its attorneys, and 
moves the court to set aside the verdict of the jury ren- 
dered herein, and to grant a new trial of the above enti- 
tled cause, for the reasons following, viz.: 


ib 


The court erred in sustaining plaintiff’s demurrer to 
defendant’s fourth plea. 


1b. 
The court erred in refusing leave to the defendant to 
file a plea of nul trel corporation herein. 
inal 


The court admitted on the trial improper evidence, 
over the objection of the defendant. 


The court refused to admit upon the trial proper docu- 
mentary evidence offered by the defendant. 


V. 


The court refused to admit upon the trial proper oral 
testimony offered by the defendant. 


VI. 


The court erred in admitting as evidence upon the trial 
Exhibits 1, 3, 4, 5, 6, 7,3) 97°10, 11, 12, 13; 145 oS ieee 
18, 19, 20 and 21 (both inclusive), offered by the plain- 
tiff, over the objection of the defendant. 


VIL. 


The court erred in improperly restricting the cross- 
examination by defendant of the witnesses who testified 
on behalf of the plaintiff. 


VIII. 


The court erred in not properly restricting the cross- 
examination by the plaintiff of the witnesses who testi- 
fied upon behalf of the defendant. 


DX 


The court erred in refusing to allow the defendant to 
make proof of facts specified in certain offers appearing 
in the record, after sustaining objection of plaintiff to 
questions having for their purpose the eliciting of such 
testimony. oe 


The court erred in refusing to exclude from the evi- 
dence in this case Defendant’s Exhibit 1, as requested by 
defendant in its motion at the conclusion of the taking’ 
of evidence upon behalf of the plaintiff. 


4798 XL. 


The court erred in refusing to exclude from the evi- 
dence in this case Defendant’s Exhibit 2, as requested by 
defendant in its motion at the conclusion of the taking of 
evidence upon behalf of the plaintiff. 


> AE 


The court erred in refusing to exclude from the evi- 
dence in this case Defendant’s Exhibit 3, as requested by 
defendant in its motion at the conclusion of the taking of 
evidence upon behalf of the plaintiff. 


Sl 


The court erred in refusing to exclude from the evi- 
dence in this case Defendant’s Exhibit 4, as requested by 
the defendant in its motion at the conclusion of the tak- 
ing of evidence upon behalf of the plaintiff. 


DESL. 


The court erred in refusing to exclude from the evi- 
dence in this case Defendant’s Exhibit 5, as requested by 
the defendant in its motion at the conclusion of the tak- 
ing of testimony upon behalf of the plaintiff. 


XV. 


The court erred in refusing to exclude from the evi- 
dence in this case Defendant’s Exhibit 6, as requested by 
defendant in its motion at the conclusion of the taking of 
evidence upon behalf of the plaintiff. 


XVI. 


The court erred in refusing to exclude from the evi- 

4799 dence in this case Defendant’s Exhibit 7, as requested 

by the defendant in its motion at the conclusion of the 
taking of evidence upon behalf of the plaintiff. 


XVII. 


The court erred in refusing to exclude from the evi- 
dence in this case Defendant’s Exhibit 8, as requested 
by the defendant in its motion at the conclusion of the 
taking of evidence upon behalf of the plaintiff. 


XVIII. 


The court erred in refusing to exclude from the evi- 
dence in this case Defendant’s Exhibit 9, as requested 
by the defendant in its motion at the conclusion of the 
taking of evidence upon behalf of the plaintiff. 


XIX. 


The court erred in refusing at the close of plaintiff’s 
ease to grant the several motions made by defendant to 
exclude the testimony specified from the consideration 
of the jury. 


1059 


XX, 


The court erred in denying the motion of the defend- 
ant at the close of the plaintiff’s case, to strike from 
the record the testimony of the following witnesses, viz. : 
Joseph Grainer, Henry Rean, Henry Myer, Charles 
Mudge, Ed Pyka, Charles Castendyck, Otto Halm, Fred 
A. Mudge, M. J. Charlies, Abram Voorhees and Charles 
Dooly. 

XXI. 


The court erred in denying the motion of the defend- 
ant made at the conclusion of plaintiff’s case, to strike 
4800 from the record the testimony of the various witnesses 
specified, with reference to the overflow of plaintiff’s 
premises, injury to, condition of, or value of crops there- 
on, or to the use said premises were put since January 

17, 1900. 

XXIT. 


The court erred in denying the motion of the defend- 
ant at the conclusion of the plaintiff’s case, to strike from 
the record the testimony of the various witnesses speci- 
fied, with reference to any injury to crops upon the prem- 
ises claimed by plaintiff for the years 1902 to 1912 (both 
inclusive). 

XXIII. 


The court erred in granting the motion of plaintiff 
to strike from the declaration certain lands specified m 
said motion, without requiring amendment of the dec- 
laration to correspond accordingly. 


XXIV. 


The court erred in permitting plaintiff to enter a dis- 
claimer as to certain lands described in the plaintiff’s 
declaration. 


1060 


XXV. 

The court erred in denying the motion of defendant to 
exclude at the close of plaintiff’s case the testimony of 
certain witnesses specified therein, for the reason that 
the same constituted a variance between the allegations 
of the declaration and the proof. 


XXVI. 


The court erred in submitting to the jury the issues 
in the case without requiring plaintiff to amend the dec- 
4801 laration and eliminate therefrom the real estate which 
was excluded by the court from the consideration of the 
jury, or by the voluntary act of the plaintiff is disclaim- 

ing as to said real estate. 


XXVII. 


The court erred at the conclusion of the plaintiff’s 
case in denying the motion of the defendant to instruct 
the jury to find the defendant not guilty, under the first 
count of the declaration. 


XXVIII. 


The court erred at the conclusion of the plaintiff’s 
case in denying the motion of the defendant to instruct 
the jury to find the defendant not guilty under the sec- 
ond count of the declaration. 


X XIX. 


The court erred at the conclusion of the plaintiff’s case 
in denying the motion of the defendant to instruct the 
jury to find the defendant not guilty under the third 
count of the declaration. 


The court erred at the conelusion of the taking of tes- 
timony upen behalf of the plaintiff, in denyng the mo- 
tion of the defendant to instruct the jury to return a 
verdict finding the defendant not guilty. 


XXXII. 


The court erred in refusing to sustain objections of the 
defendant to improper remarks of counsel for plaintiff 
made in its opening statement, to the refusal of which 
the defendant duly excepted. 


4802 XXXII. 


The court erred in sustaining objections of the plain- 
tiff to certain parts of the opening statement made by 
counsel for the defendant. 


XXXITT. 


The court erred in failing to sustain the objection of 
defendant to the improper conduct of plaintiff’s counsel 
while defendant’s opening statement was being made to 
the jury. 


XXXIV, 


The conduct of counsel for plaintiff in the hearing and 
presence of the jury was improper and duly excepted to 
by the defendant. 


XXXV. 


The counsel for plaintiff made improper remarks dur- 
ing the trial in the presence of the jury, which was duly | 
objected to by the defendant. 


1062 


XXXVI. 


The closing argument of counsel for the plaintiff was 
improper, in the particulars objected to by defendant. 


XXXVII. 


The conduct of plaintiff’s counsel, with reference to 
the jury, was improper. 


NED. HAL 


The conduct of the jury was improper. 


OOS, 


The court erred in refusing to hear the reasonable ar- 
eument of counsel for the defendant upon matters of 
law involved in the suit, when requested by counsel to 

4803 do so, and in arbitrarily refusing leave to counsel for 
the defendant to present such argument. 


XL. 


The court erred in refusing to allow proof of the sev- 
eral offers of proof made by the defendant upon the 
trial. 


las 
The court erred in refusing to sustain objections inter- 


posed by defendant to questions and answers specified 
in the depositions read on the trial. 


SAAB ARE 


The court erred in admitting in evidence, over the ob- 
jection of defendant, the various exhibits referred to in 
the depositions read on the trial. 


4804 


1063 


DOS Le 


The court erred in striking from the record, over the 
objection of defendant, portions of the testimony con- 
tained in the answer of witnesses being examined by the 
defendant. 


Olay. 


The court erred in refusing to grant the motions of 
the defendant to strike from the record certain portions 
of the answers of witnesses being examined by the plain- 
tiff. 


XLV. 


The court erred in adopting on the trial an improper 
rule as to measure of damages, over the objection of the 
defendant. 


XLVI. 
The court erred in restricting proof as to conditions 


affecting lands described in declaration to period sub- 
sequent to January 1, 1883, of its own motion. 


XLVILI. 


The court erred in denying to the defendant the right 
to prove the fair cash market value of the premises de- 
seribed in the declaration at the time of the trial. 


XLVI. 


The court erred in refusing to admit as evidence the 
eharter of the plaintiff corporation, offered by the de- 
fendant. 


1064 


XLIx. 


The court erred in allowing the witness Hazen, over 
the objection of the defendant, to testify as to his mental 
processes in reaching a conclusion as to the value of the 
lands referred to in the statement made to R. G. Dun & 
Company by the witness. 


1G; 


The court erred in allowing the witnesses for the plain- 
tiff, in giving an opinion as to the fair cash market value 
of the real estate described in the declaration, to take 
into consideration matters known only to themselves, ex- 
isting up to the time of the trial, and concerning which 
there was no testimony in the record. 


LI. 


The plaintiff failed to prove ownership of the real 
estate described in its declaration. 


LIT. 


The court erred at the conclusion of the taking of tes- 
timony on the trial, in denying the motion of the defend- 
ant to instruct the jury under the first count of the dec- 
laration to return a verdict of not guilty. 


LIL. 


The court erred at the conclusion of the taking of tes- 


4805 timony on the trial, in denying the motion of the de- 


fendant to instruct the jury under the second count of 
the declaration to return a verdict of not guilty. 


1065 


LIV. 


The court erred at the conclusion of the taking of tes- 
timony on the trial, in denying the motion of the defend- 
ant to instruct the jury under the third count of the dec- 
laration to return a verdict of not guilty. 


LV. 


The court erred at the conclusion of the taking of tes- 
mony on the trial, in denying the motion of the defend- 
ant to instruct the jury to return a verdict finding the 
defendant not guilty. 


LVI. 
The court erred in giving to the jury instructions num- 


bered 1 to 20 (both inclusive), requested on the part of 
the plaintiff. 


LVI. 


The court erred in refusing to give to the jury instruc- 
tions numbered 45 to 80 (both inclusive), requested on 
behalf of the defendant. 


LVIII. 


The damages awarded by the jury are excessive, and 
a result of passion and prejudice upon the part of the 


jury. 
LIX. 


The verdict of the jury is contrary to the law and the 
evidence. 


LX. 


The verdict of the jury is contrary to the evidence. 


LXI. 
The verdict of the jury is contrary to the law. 


1066 


1b P.G bt: 


The court erred in improperly instructing the jury as 
to the form of a verdict finding for the plaintiff. 


LXIIl. 


Improper remarks made by the court during the trial 
and in the presence and hearing of the jury and duly ex- 
cepted to by the defendant. 


LXIV. 


The court erred in denying the motion of the defend- 
ant to exclude the deposition of the witness E. L. Cooley. 


LXV. 


The court erred in overruling the motion of the de- 
fendant to strike from the record the testimony of the 
witness, Ii. L. Cooley, respecting matters covered by his 
deposition read upon the trial. 


LXVI. 


The court erred in overruling the motion of defendant 
to exclude from the consideration of the jury various 
tracts of real estate claimed by the plaintiff and specified 
in said motion. 


LXVII. 
The jury were improperly allowed to separate after 


the cause was submitted to them for decision and before 
the verdict herein was presented to the court, 


1067 


4807 LXVITI. 


The court improperly permitted the witness, Hazen, 
to alter and change the effect of the statement made by 
him on behalf of the plaintiff in this ease to R. G. Dun & 
Company by stating to the jury what was his secret in- 
tention and undisclosed meaning at the time he so made 
said statement, thus changing the effect of said statement 
by the undisclosed mental reservation of said Hazen at 
said time. 


LXIX. 


The court erred in allowing the several witnesses for 
plaintiff to testify over the objection of the defendant to 
the fair cash market value of the surface only of the real 
estate claimed by plaintiff, instead of stating an opinion 
as to the fair cash market value of the entire estate de- 
seribed in plaintiff’s declaration. 

THE Santrary District or CuHicaco, 
By CHIPERFIELD & CHIPERFIELD, 
Its Attorneys. 
Endorsed upon the back as follows: 


BEN ORE Pe Common Law Chancery. State of Illi- 
nois, La Salle County. In Circuit Court. October Term, 
A. D. 1912. La Salle County Carbon Coal Company vs. 
The Sanitary District of Chicago. Motion of defendant 
for a new trial. Chiperfield & Chiperfield, Attorneys at 
Law and Solicitors:in Chancery, Canton, Fulton County, 
Illinois. For Defendant.’’ 

Bull of exceptions. 

Proceedings had in said court on January 4, 1913, in 
the cause of La Salle County Carbon Coal Company vs. 
Sanitary District of Chicago, before the Honorable Sam- 
uel C, Stough, judge of said court. 


1068-69-70-71 


4808 Motion by defendant for leave to withdraw motion for 
new trial in order to enter a motion for judgment non 
obstanti veridicto. Motion allowed. 


Motion by defendant for judgment notwithstanding 
the verdict in the case. Motion overruled by the court. 
To which ruling the defendant then and there. excepted. 


Motion to set aside verdict in said cause and for a 
new trial. 


The Courr: The motion for a new trial is overruled. 
To which ruling of the court the defendant, by its 
attorney, then and there duly excepted. 
Motion in arrest of judgment. 
Motion in arrest of judgment overruled, to which rul- 
4813 ing the defendant then and there excepted. 


Mr. Duncan: At the trial we introduced a notice 
served upon the District as a foundation for a claim on 
the part of the plaintiff for attorneys’ fees. We desire 
to have that disposed of before the order for appeal is 
entered. ‘ 


Mr. CuiperFieLp: As I told you, Mr. Duncan, in the 
other room, the first suggestion I have had that a ques- 
tion of that sort would come up was perhaps ten minutes 
ago. We are not prepared. It may be set down and we 
will come here at that time and dispose of this motion. 

Mr. Duncan: I would like to have the matter set for 
some day next week. 

The Court: Does it have to be disposed of before the 
appeal is heard? 

Mr. Duncan: I think, your Honor, it ought to be a 
part of the same judgment. 

4814 Mr. Currrrriryp: It is entirely separate and distinct 
and so held that they are not related and that an appeal 
may be taken from one without the other. 


1072 


Mr. Duncan: I think that is true. The language of 
the statute upon that subject is in these words, ‘‘ And in 
case judgment is rendered against such District for dam- 
age, the plaintiff shall also recover his reasonable attor- 
neys’ fees to be taxed as costs of suit.”’ 

Mr. O’Conor: It is customary to take it up at this 
time. 

Mr. O’Donnett: If your Honor please, attorneys’ fees 
are taxed as costs by the court on the hearing of the 
motion. The rule is invariable that an appeal, if per- | 
fected, takes up the case, and takes it entirely out of this 
court and into the Supreme Court. As soon as the ap- 
peal is perfected, the case is then out of this court, and, 
therefore, before the appeal is even allowed the attor- 
neys’ fees should be taxed. 

Mr. Currerrietp: I do not care whether judgment is 
entered today or not, but we are certainly not ready to 
take up the question of the taxation of attorneys’ fees 

4815 without having some notice of that matter. We want to 
have a reasonable time in which to prepare. I don’t 
know what these gentlemen ask in the way of attorneys’ 
fees, but we anticipate it will be a sufficient amount to re- 
quire some preparation. 

The Courr: I will enter our motion to tax the attor- 
neys’ fees. I will set it for Saturday morning at ten 
o’clock. 

e Mr. Curperrietp: I want the record to show that the 
judgment is entered now. 

The Court: I will enter judgment if there is no ob- 
jection to it. I am not informed as to the procedure in 
the taxation of attorneys’ fees. 

Mr. Duncan: In order that there may be no question 
here, I think the entry of judgment should wait until the 

4816 matter of attorneys’ fees is settled. 

The Court: The motion for a new trial will be over- 


1073 


ruled, and the motion in arrest of judgment overruled. I 
will let it stand that way. 

Mr. Cuiperriryp: We want the record to show, which 
I think it does already, that we preserve an exception to 
the overruling of the motion to enter a judgment, not- 
withstanding the verdict, for the defendant. 

The Court: Yes. 

Mr. CuriperFrieLp: I want the record also to show that 
we now except to the ruling of the court in overruling the 
motion for a new trial and also to the ruling of the court 
in overruling the motion in arrest of judgment. 

The Court: Yes. : 

4817 Motion by defendant for rule on the plaintiff to furnish 
a bill of particulars as to the amounts and items which 
compose application for taxation of solicitors’ fees. 

4818 The Courr: I think I will enter a rule on the plain- 
tiff to file a bill of particulars. 

4819 Plaintiff ruled to file bill of particulars by Tuesday 
morning next. 

Further proceedings postponed until Saturday morn- 
ing, January 11; 1913. 

4820 Hearing on motion of plaintiff for allowance of at- 
torneys’ fees and taxation of the same as costs in said 
court, before the Honorable Samuel C. Stough, judge of 
said court, in which the following proceedings were had. 

4821 Mr. Curprrriztp: Now in this matter a purported bill 
of particulars has been filed which is as limited in details 
as it is large in assurance of the amount of fees demand- 
ed. We know what work was done in court and there is 
a trifle of $7,000 demanded in the way of fees. It may 
be an insignificant item as compared with the ad damnum 
in the main case. In a very general way a statement is 
made of what work was done outside of court. JI am not 
prepared to go into the hearing in this case or to pro- 
duce our proofs until a bill of particulars is filed that 


1074 


will show the number of days that it is contended was 
occupied out of court, and the kind of work that was 
done on those days, and the days that were devoted to the 
preparation of this case. If this were a bill that was sub- 
mitted to an ordinary client by his own counsel he would 
be entitled to at least that much, and how much more 
true is it when it is a bill submitted to an adverse party 
on which they are called to come into court to make their 
defense and show why the compensation demanded should 
not be allowed. And it gives us absolutely no basis to 
prepare for this hearing and we are not ready until a 
more specific bill of particulars is filed, and we wish to 
make a motion to require the plaintiff to file a more par- 
ticular bill of particulars, a more specific bill of particu- 
lars setting forth the services that were rendered in de- 
tail instead of in a general manner. 

4822 And in that same connection we wish to enter a mo- 
tion for a continuance in this hearing until such specific 
statement is made and time given us to prepare to meet 
it. Here is a general shot gun charge filed in this case 
in what is the center of attraction for the opposition, 
$7,000, saying that they have filed a declaration. We 
know they did. Saying that they interviewed witnesses; 
we presume that is true. Saying that they prepared for 
trial; possibly that may be so. But the time 
that is employed in the preparation for trial, these other 
matters in detail or any detail, anything that approaches 
detail is not given, and I submit to your Honor how is it 
possible for the defendant in this case to prepare for a 
hearing without having some basis on which to prepare. 
And so‘we wish to submit both of those motions. 

Mr. O’Donnett: If the court please, as I understand 
Mr. Chiperfield he concedes that the character of the 
work performed is fully set forth in the bill. 

Mr. CurperrieLp: What is that? 


1075 


Mr. O’Donnetu: Is fully set forth in the bill of par- 
ticulars. 

Mr. CuiperFIELD: Then I fail to make myself under- 
stood. 

Mr. O’DonnetL: Well, I understand and we will 

4823 Mr. Cuiperristp: I don’t care how counsel under- 
stood me, all I want is that I make my meaning plain to 
the court. 

Mr. O’Donneti: I understood you to say that it set 
forth the preparation of the case, filing of the declaration, 
interviewing of witnesses, preparing for trial and you 
had a suspicion that we might have prepared for trial, 
and the work done in court and that that was very forci- 
bly set forth. No greater particularity can be obtained 
in this case unless in the language of the authors you 
‘‘nlead your evidence.’’ The work necessarily does not 
depend upon the actual number of days that were de- 
voted to the proof or what kind of work was done, and if 
the bill of particulars is to be more specific than the one 
on file here it will have to specify the number of hours 
devoted to each witness, the number of witnesses inter- 
viewed, and the places we walked about the land and the 
importance of the issues that we were handling and the 
questions of law pertaining to them. This would be a 
perfectly good bill of particulars if rendered to a client, 
and if it is good enough for a client it is good enough 
for the purpose of this motion. 

There is no lack of particularity in it that would de- 
ceive a lawyer or the Sanitary District, which is the great- 
est machine in IJlinois, to prepare for trial; it knows some- 
thing about the case. We have devoted time to the prep- 
aration of the case and Mr. Chiperfield has, and we have 
done the best we could. 

4824 Mr. CurperrreLpD: You haven’t done very much. 
Mr. O’Donnett: We have set out the facts as well as 





1076 


we could and that is all that could be done in the case. 
I doubt whether a bill of particulars was necessary. It 
is not a matter of right in this case to have a bill of par- 
ticulars at all. The court entered the rule in its discre- 
tion in order to aid in the investigation of the matter. 
Now Mr. Chiperfield in his address to the court has not 
said one word pointing out—has not advanced one point 
wherein he could not prepare for trial on this bill of par- 
ticulars. We would have to prove the preparation, we 
weuld have to prove the filing of papers, we would have 
to prove the argument of demurrers, we would have to 
prove the argument of defenses alleged and the defenses 
claimed, we would have to prove the amendments, we 
would have to prove the interviewing of witnesses, but it 
would be hardly expected that we would hold a watch on 
ourselves, and aside from the itemization of hours and 
minutes the bill of particulars in my judgment is par- 
ticularly sufficient in this case. | 

Mr. CurperFIELD: I want to call your Honor’s atten- 
tion to the bill of particulars that has been filed. There 
isn’t a thing in this bill of particulars that adds one sin- 

_ gle scintilla of information to the general charge that these 
gentlemen, some of them coming in at the division of the 
raiment, these gentlemen have furnished such valuable 

4825 service that they appear only when the raiment is to be 
torn up. They are all here, And there is nothing in the 
bill of particulars that in any way affords us any light 
on this subject. 

Mr. Duncan: I don’t think, if the court please, that 
we, who have lived here all our lives are compelled to 
sit silent under the imputations brought forth here by. 
this stranger that comes to us 

Mr. CurperFieLD: You have an advantage perhaps over 
the stranger. 

Mr. Duncan: No, we haven’t any advantage. 





1077 


Mr. CurperFieLp: Haven’t you? 

Mr. Duncan: We are here to protect the interests of 
our client—— 

Mr. CxHiperFigeLp: You haven’t shown much interest 
in it until now. 

Mr. Duncan: Now we are not going to sit here and 
listen to the abuse of this man in the presence of the 
court, or otherwise. We are not here for the purpose of 
attending the division of the spoils; we have a client in 
this case, if the court please, that is amply responsible 
and who is required to pay us our fees, from whom we 
will collect our fees whether the court allows us any- 
thing—allows us anything in this motion or not. We are 
not looking to Mr. Chiperfield nor to this organization 
that he represents in Chicago for our money. We have 

4728 earned our money, we have earned it with good hard 
work and we expect the client to pay us. We are not 
here expecting any charity at his hand or at his client’s 
hand. Nor does the sneering of the gentleman, if he can 
be so called, add anything to the force of what he says. 

Mr. CurperrieLp: The recent convert is always the 
most enthusiastic. This is the important gentleman’s 
first appearance in the case. 

Mr. Duncan: I have been in this case from its incep- 
tion and he knows it. 

Mr. CurperrieLp: He was a stranger to the court room 
and all that transpired. 

The Court: I wish you would read this to me. I start- 
ed to read it a number of times here, but I did not get 
very far. 

Mr. CurprerFretp (reading): ‘‘The plaintiff claims at- 
torneys’ fees for services performed by attorneys em- 
ployed by it, at, in and about the preparation and trial 
of said cause, to-wit: The attorneys employed by the 
plaintiff were Duncan, Doyle & O’Conor, J. L. O’Donnell 


1078 


and A. K. Butters, and the services performed by them 
were consultations with officers of the plaintiff; prepara- 
tion and service of notice under Section 19, or the Sani- 
tary District Act upon one of the trustees of the defend- 
ant; preparation of declaration and commencing of suit; 
services in court in and about argument of demurrers, 

4789 motions for continuance, motion for change of venue 
and attention to the case in the Circuit Court of La Salle 
County from 1905 to the date of trial; services of attor- 
neys in examining the lands described in the declaration 
and preparing the evidence and consulting with wit- 
nesses; and examination of all questions of law arising 
before and during the trial and for trial of the cause 
in the Cireuit Court of La Salle County before the court 
and a jury, and preparing for and attending the hearing 
on motion for new trial, $7,000.’’ 


That is 20 per cent. 


The Court: It states about everything that is usually 
charged for in a law suit, but it is unlike the usual bill 
in having the price attached to each item. Otherwise I 
don’t know but what it is sufficient to notify the other 
side what services they rendered about a law suit. Or- 
dinarily they would state examining the law so much, so 
many days in court so much. The only variance that I 
see from the ordinary bill of particulars for lawyers’ 
fees is the separate charge for different services. 


4830 Mr. Currerrietp: Yes, your Honor. It is quite a con- 
siderable amount. It is about once and a half as much 
as the niggardly State of Illinois gives to the circuit 
judge sitting a whole year. It is not a mere bag-a-telle, 
it is rather a decent amount. 

The Court: Well, I am not certain that a bill of par- 
ticulars is required, but I thought it was fair that they 
should state what their services were in a general way, 


1079 


so I ordered it. But I think I will overrule your motion 

and give you one more exception before the case is over. 

4831 To which ruling of the court the defendant duly 
excepted. 

Mr. CuiperrreLp: Before we proceed—that also ap- 
plies to the motion for a continuance? 

The Court: Yes, your motion. 

Mr. Cuiperrietp: And also an exception to that. 

To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 

Mr. Cureerrietp: Before we proceed any further in 
the matter of the taxation of the attorneys’ fees, we want 
to have judgment entered in this case as the next step 
that is taken. Until judgment is entered, this and no 
other court has any right to determine upon the ques- 
tion of fees. 

The Court: I will pass that question up to the at- 
torneys on the other side. I haven’t considered it. 

Mr. Duncan: The hearing on the question or motion 
for the fixing of attorneys’ fees, it seems to us, should be 
had so the court may enter the judgment against the de- 
fendant for the amount of the verdict and enter his judg- 

4832 ment as to the cost, fixing the amount of the attorneys’ 
fees as costs. 

The Courr: Do you object to the entry of judgment 
before the evidence for attorneys’ fees is heard? 

Mr. Duncan: Yes, your Honor. 

The Courr: Well, I will sustain the objection and ex- 
ception by defendant. 

Mr. Cutprrrretp: And we except. 

To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 

Mr. Cureerrietp: Now, if your Honor please, we pro- 
test against being required to appear upon the question 
of the taxation of any costs in this case until a judgment 


1080 


has been entered against one of the parties to this suit 
upon which costs can be predicated. Your Honor knows 
absolutely that costs can only be predicated upon a judg- 
ment and that it is a step that is taken after judgment 
only when it is against the unsuccessful party. And the 
statute in this case, Section 19, specifically requires the 
judgment to precede the taxation of the costs. 

Mr. Duncan: Representing the plaintiff, if the court 
please, we feel that it is immaterial insofar as whether 
or not the judgment on the verdict is entered before the 

4833 amount of attorneys’ fees is fixed. The statute reads 
that in the event that the plaintiff secures a judgment 
for damages, the court shall enter judgment for the attor- 
neys’ fees for plaintiff. 

Mr. Currrrrimetp: The statute does not so read. The 
statute reads: ‘‘And in case judgment is rendered 
against such District for damage, the plaintiff shall also 
recover his reasonable fees to be taxed as costs of suit.’’ 
The condition precedent is the rendition of judgment. 

The Court: Do you want to proceed with the hearing 
of the evidence respecting the attorneys’ fees now or 
after judgment is rendered? 

Mr. O’Donnett: We would think the proper way 
would be to hear the evidence on the question of the 
attorneys’ fees and then after that is done the court 
can—— : 

The Courr: Well, Mr. Chiperfield’s objection is over- 
ruled. Call your witnesses. 

4834 To which ruling of the court the defendant, by its 

| counsel, then and there duly excepted. 

Mr. CureerFietp: Let me suggest, your Honor, that we 
want to make a separate bill of exceptions in this mat- 
ter. At least we are going to tender a separate bill, and 
so there may be no question as to the chronology of 
things we want it to appear that this hearing is held be- 


1081 


fore the entry of judgment in this case, and that the de- 
fendant protests against being required to proceed with 
the hearing in this case until judgment has been rendered, 
and only proceeds in this hearing because required so to 
do by the court. 

The Courr: The record may show that. 

Mr. CHIPERFIELD: All right. 

(Thereupon seven witnesses were sworn.) 


4835 James L. O’DonNELL, a witness for the plaintiff, being 
sworn, testifies as follows: 


Direct Examination. 


My name is James L. O’Donnell; I reside in Joliet, 
Will County, Illinois. I am sixty-three years old. Law- 
yer by profession and have been practicing continuously 
since 1874. Have lived continuously in Joliet since said 
time. Have been engaged in the general practice of law, 
4836 but not in La Salle County to any great extent. Have 
attended to a few matters, equity matters and one or two 
common law cases only. During a portion of the time 
Will and La Salle Counties were in the same judicial 
district, but am unable to say how long. 
Am acquainted with the officers of the plaintiff; was 
employed in this suit by its president in 1904, in re- 
4837 sponse to a letter from Mr. Wyeth requesting me to 
call upon him. 
Mr. CurprrFieLtp: I object, the letter will be the best 
evidence. 
The Court: I will let that stand. 
4838 To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 
4839 Mr. Cuiperriexp: Will your Honor rule concerning 
exceptions that they apply to each and all, that the ex- 


1082 


ceptions apply to all objections if desired? May that be 
understood? 

The Court: Every adverse ruling will have its ex- 
ception. 

The Witness (continuing): I went to Chicago and 
spent the afternoon with Mr. Wyeth consulting with him 
about the question of recovery of damages in behalf of 
the plaintiff for overflow of lands described in the decla- 
ration in this case. <A short time after that I met Mr. 
Wyeth and other persons connected with the plaintiff 
in Chicago and got the special descriptions, spent the 
afternoon in consulting with them and arranging for the 
commencement of the suit, discussing the question of 
what attorneys they desired to have in the case. After 
consultation with the firm of Duncan, Doyle & O’Conor, 
and getting the descriptions from the company, we pre- 
pared a notice and served upon the Sanitary District of 
Chicago demanding a settlement of the damages. That 
notice I think I prepared in my office in Joliet after con- 
sultation at Ottawa. 

Mr. Curperrretp: I move to strike from the statement 
of the witness anything as to the contents of the notice 

4840 on the ground the notice itself would be the best evi- 
dence. 

The Court: I think I will overrule the motion. 

Hixception by defendant. ; 

The Wirness: The exhibit marked ‘‘21’’ in this suit 

is the notice to which I refer. After the preparation of 
the notice I went to the offices of the Sanitary District 
of Chicago 

Mr. CurrerrieLD: Wait a minute, I object to it, incom- 
petent, immaterial and irrelevant. 

The Court: I think I will overrule the objection. 

To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 





1083 


4841 The Witness: And delivered a copy of the witness to 
William H. Baker 
Mr. Curprerrietp: I object to the proof of service of 
notice at this time; the statute requires the proof be made 

on the trial. 

The Court: I think I will overrule the objection. 

To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 

The Witness: —one of the trustees of the Sanitary 
District of Chicago a copy of this original and brought 
it home and kept it in custody until recently when I de- 
livered it to Duncan & O’Conor, at Ottawa. 

Mr. Cuiperrietp: If the court please, I move to strike 
from the record the statement of the witness concerning’ 
the service of this notice, as the statute requires that the 
proof shall be made upon the trial and not upon the 
hearing 

Objection overruled; to which ruling of the court the 
defendant, by its counsel, then and there duly ex- 
cepted. 

The Wrirness: The date of the service on Mr. Baker 
was October 25, 1904. 

4842 Mr. CHIPERFIELD: Same objection, same motion. 

The Court: I will overrule the motion. 

To which ruling of the court the defendant, by its 
counsel, then and there duly excepted. 

Mr. Duncan: I now offer the document, which is spo- 
ken of as the notice marked in this case as Exhibit ‘‘21,”’ 
in evidence, 

Mr. Currerrrrtp: If your Honor please, I object to it 
on the ground it is incompetent, irrelevant and immate- 
rial. 

Mr. Burters: It was introduced on the hearing. 

Mr. CurperrieLp: No, it was not. 

Mr. Burtrsers: Yes, it was, 








. 1084 


Mr. Curerrrirtp: Read the record, that will speak. 

Mr. Burrers: You stated at the time it was intro- 
duced if you had any further objection to it— 

Mr. Curprrrietp: You better read the record. 

Mr. Burrers: —that you would make it known at that 
time, otherwise it could be considered in. 

Mr. CureerFieLp: That is not true. 

Mr. Burters: That is true. 

Mr. CuiperFIeLD: Now, I have got the record and I 
know what it states, I know what it states and I know 
that is not correct. The record will show. I looked it 
up within the last twenty-four hours. The objection is 
this, that it is Incompetent, irrelevant and immaterial 
and that the statute requires that the proof shall be made 


4843 upon the trial of the service of this notice, and that 


has not been done, and we object to it being patched up 
at this time. 

The Court: I think I will overrule that objection. 

To which ruling of the court the defendant by its 
counsel then and there duly excepted. 

Mr. Duncan: ‘This is marked Exhibit ‘‘21.”’ 

Mr. CuiperFietp: I want that introduced as an exhibit 
on this hearing as we are taking a separate bill of excep- 
tions on appeal on this question of attorneys’ fees. 

Whereupon said document was marked Plaintiff’s Ex- 
hibit ‘£1’? and is in words and figures following, to-wit : 


PLAINTIFF’s Eixutrpit 1. 


(Exhibit 21.) 


“‘lo the Sanitary District of Chicago: 

Take notice that I am the owner of and claim damages 
to the following lands in Township thirty-three (33) 
North, and of Range One (1) East of the Third (3rd) 
Principal Meridian’’; 


1085 


Being a part of the same lands described in the plain- 
tiff’s declaration, 

4845 ‘To the amount of One Hundred and Ninety-two Thou- 
sand and Seven Hundred ($192,700.00) Dollars, which 
damages to said premises are caused by overflow of the 
Illinois River upon said premises by reason of the dis- 
charge into that river through the Desplaines River in 
the State of [llinois, of a volume of water by the Sani- 
tary District of Chicago by channels and outlets con- 
structed by said Sanitary District to conduct the waters 
of Lake Michigan and other waters into said Desplaines 
River, and also by other embankments, channels and 
outlets in the Counties of Cook, Du Page and Will, in 
the State of Illinois, constructed by said Sanitary Dis- 
trict to increase the flow of water in said Desplaines 
River and thereby carry the same into the Illinois River; 
which channels, embankments and outlets were con- 
structed and are permanently maintained by said Sani- 
tary District of Chicago, and that I intend to sue for said 
damages. 


Dated this 25th day of Oct., A. D. 1904. 


La Saute County Carson Coat Co., 
F. O. Wratn, 
(SEAL. ) Secretary. 
Delivered copy to Wm. H. Baker, trustee, October 25, 


1904. 
JL. O2DONNEEEE 


4846 ‘‘To the Sanitary District of Chicago: 


Similar notice applying to other lands described in 
plaintiff’s declaration claiming damage for the sum of 
Ten Thousand and Two Hundred ($10,200.00) Dollars. 
Dated the 25th day of October, A. D. 1904, and signed 
La Salle County Carbon Coal Co., F. O. Wyatt, Secre- 
tary. (Seal.) 


1086 


Delivered a copy of above to Wm. H. Baker, trustee, 


Oct. 25, 1904. 
cele DON WN Bia: 


4847 Similar notice describing part of the lands contained 
in plaintiff’s declaration alleging damage in the sum of 
One Thousand ($1,000) Dollars thereto, and dated this 
25th day of October, A. D. 1904. Signed, ‘‘La Salle 
County Carbon Coal Co. F. O. Wyatt, Secretary.”’ 
(Seal.) 

Endorsed, ‘‘ Delivered a copy to Wm. H. Baker, trus- 


tee, Oct. 25, 1904. 
J. L. O’DoNnNELL.?’’ 


4848 Similar notice covering a portion of the lands described 
in plaintiff’s declaration alleging damage in the sum of 
Forty Thousand ($40,000) Dollars, dated ‘‘This 25th 
day of October, A. D. 1904.’’ Signed ‘‘La Salle County 
Carbon Coal Co., F. O. Wyatt, Secretary.’’ (Seal.) 

4849 Endorsed ‘‘Delivered a copy to Wm. H. Baker, trus- 


tee, Oct. 25, 1904. 
J. L. O’DoNnNELL.?’’ 


A similar notice describing part of the lands described 
in plaintiff’s declaration alleging damage in the sum of 
Three Thousand ($3,000) Dollars. ‘‘Dated this 25th day 
of October, A. D. 1904.’’ Signed ‘‘La Salle County Car- 
bon Coal Co., F. O. Wyatt, Secretary.’’ (Seal.) 

4850 Endorsed, ‘‘Delivered copy to Wm. H. Baker, trus- 
tee, Oct. 25, 1904. 
J. L. O’DoNNELL.’’ 

A similar notice describing a portion of the lands de- 
scribed in the plaintiff’s declaration, alleging damage in 
the sum of Twenty-five Hundred ($2,500) Dollars. 
‘‘Dated this 25th day of October, A. D. 1904.’’ Signed 
‘‘La Salle County Carbon Coal Co., F. O. Wyatt, Secre- 
tary.’’ (Seal.) 


1087 


4851 Endorsed, ‘‘ Delivered a copy to Wm. H. Baker, trus- 
tee, Oct. 25, 1904. 
J. L. O’DoNNELL.”’ 
Similar notice describing a part of lands contained in 
plaintiff’s declaration, alleging damage in the sum of 
One Hundred and Thirty-five Thousand ($135,000) Dol- 
lars. ‘‘Dated this 25th day of October, A. D. 1904. La- 
4852 Salle County Carbon Coal Co., F. O. Wyatt, Secretary.”’ 
(Seal.) 
Endorsed, ‘‘Delivered copy to Wm. H. Baker, trus- 


tee, Oct. 25, 1904. 
J. L. O’DoNNELL.’’ 


Similar notice describing part of lands contained in 
plaintiff’s declaration claiming damage in the sum of 
One Thousand ($1,000) Dollars. : 

4853 ‘‘Dated this 25th day of October, A. D. 1904. La Salle 
County Carbon Coal Co., F. O. Wyatt, Secretary.”’ 
(Seal. ) 

Endorsed, ‘‘ Delivered a copy to Wm. H. Baker, trus- 


tee, Oct. 25, 1904. 
J. L. O’DonneELL.?’’ 


4854 Mr. Duncan: Marked in this hearing now as Plain- 
tiff’s Exhibit ‘‘1,’’ and I understand the court admits it 
in evidence. 


The Court: Yes. 


The Witness (continuing): Then I afterwards pre- 
pared the declaration in this case and brought it to Ot- 
tawa and went over the declaration with Duncan, Doyle 
& O’Conor, and we commenced suit, I think, on the same 
day the declaration was completed. The formal parts of 
the declaration were prepared, reduced to printing, pre- 
pared and printed and used in this case together with 
other cases against the same defendant, all excepting the 
description of the real estate. 


1088 


I then assisted in preparing for the taking of deposi- 
tions to apply to all cases pending in this and other 
counties and in getting witnesses in Joliet as to the local 
condition of the river, being witnesses whose depositions 
I presume are on file in this case. I interviewed these 
witnesses. I got a photographer to make pictures in the 
City of Joliet and directed how to make them, or rather 
where to make them. And I got a photographer to make 

4854 pictures farther up the channel. I called at the offices 
of the La Salle County Carbon Coal Company in Chi- 
cago and arranged to have consultations about the mat- 
ter with Mr. Hazen in La Salle and Mr. Duncan in Ot- 
tawa. I was present at the taking of all those deposi- 
tions which were common to all cases, and before doing 
that I interviewed the witnesses, all except the presi- 
dent, chief engineer and E. L. Cooley. I interviewed all 
the other witnesses and interviewed some of the witnesses 
at the Bear Trap Dam before that time, some of them 
with whom I was acquainted. I attended in this court 
on the hearing of argument of some demurrers and mo- 
tions for continuance, motion for change of venue, and 
Mr. Duncan and I argued some demurrers, and upon 
pleas being filed we met here counsel for the opposite 
side on various occasions. 


I went to La Salle twice, accompanied by Mr. Duncan, 
and went over the matters of the witnesses and the de- 
scriptions of the land and the character of the land, in 
the offices of the plaintiff at La Salle. Then about a 
year ago I went over the portion of the land south of 
Peru, accompanied by Mr. Duncan and Mr. Hazen. After 
that, as the trial was approaching, I spent a day in La 
Salle with Mr. Hazen interviewing witnesses. In mak- 
ing our preparation for the case we had in view the fact 

4856 of the character of the defenses that probably would 
be introduced and the scope of the inquiry. The San- 


1089 


itary District cases involved the question of the turning 
in of the waters of the Sanitary District from Lake Mich- 
igan and from the four branches of the Chicago River 
into the Desplaines River, thence into the Illinois River, 
and the injuries complained of were said to result from 
the turning in of these waters. They also involved the 
question of the Thirty-ninth street channel which was 
afterwards constructed, its effect upon the case, and also 
the proposed work in the Calumet region. It also in- 
volved the question of the quantity of the flow at va- 
rious times. 
The waters were formally turned in on the 17th day 
of January, 1900. Up to 1907 the quantity of water 
turned into the [llinois River by the defendant was reg- 
ulated by what was known as the Bear Trap Dam and 
seven gates adjacent thereto. Subsequent to 1907 the 
water was also let out at the power house about three 
miles farther down the channel. The power house about 
1907 was completed and the channel extended from the 
Lockport basin down to that and the water was let out 
there. — | 
We examined very carefully the reports of the Sani- 
tary District of Chicago. There was nothing published 
that we could use as evidence as to the quantity of the 
flow, and we were obliged to go out and make prepara- 
4857 tions to prove the quantity of flow if possible. The San- 
itary District, while a municipal corporation, was kept 
in such a way that we did not have access to its records, 
and could not examine the records, and with difficulty 
obtained the evidence. We found some difficulty also in 
the taking of depositions on that score. It involved the 
question of the relative quantity of water which nat- 
urally flowed in the Illinois River and the quantity that 
was turned in artificially by the defendant. We talked 
with persons down the river in regard to the changed 


1090 


appearance of the river and as to any marks we could 
secure for elevations of the water. As to the main issue, 
not having engineering testimony at hand, we were 
obliged to prepare ourselves as well as we could to show 
the actual condition of the land before the turning in of 
the Sanitary District water and its condition afterwards. 
That was as far as my services were concerned in inter- 
viewing the witnesses and consulting with Mr. Hazen and 
Mr. Duncan, as well as by writing letters very frequently 
to Messrs. Duncan and Hazen in the way of preparation. 

I think I spent in all about sixteen days from the time 
of my interview up to the trial, in and about the matter 
of the case. 

4858 The work done in regard to preparing, or consultations 
regarded as necessary to the preparation of the evidence 
I will say was done generally; in regard to the condition 
of the water as to its elevation at different places, each 
piece of land in a general way had a characteristic of 
its own. Some land lay low where the water would come 
in directly over the flats, and some land was claimed to 
be affected by bayous and creeks backing up into it; 
some land lay high at the river, sloped back from the 
river. 

The lands of the La Salle County Carbon Coal Com- 
pany were different in formation than most of the other 
pieces and they required some examination different 
from the others, but the general preparation for the 

4859 proof of the flow of the water applied to all and the 
general preparation in regard to the attempt to compare 
the volume of the water of the Sanitary District with 
the volume of the natural water applied to all. 

The labor performed in taking depositions at Joliet 
and Chicago applied to all the cases, did not apply to this 
particular case. 

IT think I appear as attorney for plaintiff in about 


LOUIE 


ninety cases in Bureau, La Salle and Grundy Counties. 
I did not engage in the trial of the present case. 

Q. How did that come? A. At the time the trial 
commenced— 

4860 Mr. Curperrietp: That is objected to as being imma- 
terial. The fact is he was not here. 

The Court: I think I will let him answer. 

Mr. CuIperFIELD: All right. 

To which ruling of the court the defendant by its 
counsel then and there duly excepted. 

A. At the time the trial commenced I was engaged 
in actually trying a case in Bureau County, Illinois, which 
continued for some time after the trial of this case com- 
menced. : 

During the recesses of the trial that I was engaged in 
in Bureau County I had some conferences with the at- 
torneys engaged in the trial of this case, in reference 
to it. I kept up a correspondence with them quite ex- 

4861 tensively, and I came here one day for the purpose of 
consulting Mr. Duncan and Mr. O’Conor and Mr. But- 
ters, and stayed over night and until noon the next day 
for the purpose of rendering what assistance I could in 
the matter during the trial. 


Cross-Examination of the Witness James L. O’Donnell. 


I and my associates had a contract or agreement with 
the plaintiff relative to our compensation in the event 
of a recovery in this case. I do not know where the 
agreement is. I do not know that I ever saw it. We had 

4862 two agreements; which one do you mean? The last 
agreement was a verbal agreement between us and the 
superintendent in regard to the cases, made at the office 
in La Salle. The written agreement is not in my pos- 
session. I do not know where it is. If it is in existence 
at all it is in either the possession of Mr. Hazen, of the 


1092 


plaintiff or Mr. Duncan. It was a contract in favor of 
us as attorneys. I told you I don’t know where it is. 

Mr. CureerFieLtp: Then I want to call at this time, so 
that I may more intelligently conduct this case, I call 
upon opposite counsel to produce the agreement that I 
may question this witness further. 

4863 Mr. Duncan: There isn’t any written agreement in 
force.and has not been for a long time. 

Mr. CurPerFirtp: I don’t care whether it is in force 
or not. I want the written agreement that was entered 
into concerning the fees of these attorneys, if-it is in 
existence; if not, then I will make secondary proof of it. 
We will see whether it is in force or not. 

Mr. Duncan: You may make all the proof you are 
permitted to. 

Mr. CuHIPerFIELD: It is not to make the proof, I want 
to cross-examine this witness now. Surely it is nothing 
remarkable I should ask, if there was a contract, that 
that contract be exhibited. 

The Witness: I haven’t got it. 

Mr. CurpeerFieLp: You understand I am addressing 
my remarks to the court. 

The Witness: Never had it. 

Mr. CurIPerFieLD: I am not addressing my remarks to 
the witness, and I want opposite counsel at this time to 
produce that contract so that I may interrogate the wit- 
ness concerning it, that is all. 

The Court: If they have it, I think they ought to 
produce it. 

Mr. Duncan: We haven’t got it here, your Honor, 
and I don’t know that we have it. 

Mr. CureerFieLp: Well— 

4864 Mr. Duncan: I am not sure about that. It is years 
and years that these cases have been pending— 

Mr. CHIPERFIELD: Seven years. 


1093 


Mr. Duncan: Eight years now, nearly. 

Mr. CuriperFieLD: Now, if your Honor please— 
Mr. Dunoan: Following the— 

Mr. Cuiperrietp: If your Honor please— 

Mr. Duncan: And that contract was made in writing 
about the time that the suit was begun. Some time after- 
wards and a long time before this case was tried and 
before most of the work that was done in it was done, 
the written contract was abrogated absolutely and the 
agreement made with the client as to the attorneys’ fees 
verbally. 

Mr. CurperFieLtp: I want the written contract as far 
as it was in force. The written contract speaks accu- 
rately. 

Mr. Duncan: Well, I speak accurately, if the court 
please, on the general proposition. 

Mr. CureerFrieLtp: If your Honor please, I want them 
to produce the written contract. 

‘The Court: Well, he says he doesn’t have it. I can’t 
rule him to produce something he hasn’t got. 

Mr. CurPerFIELD: As to his knowelge, I don’t know. I 
think the court should instruct him to make an effort 
to produce it when it is called for. The fact that he 

3865 says, if your Honor will indulge me just a moment, that 
he don’t know, implies that it may be in their possession. 
Why should we not— 

The Court: I have already said if they have it they 
should produce it. 

Mr. CurIPerFIELD: I know, but we have— 

Mr. Duncan: If the court please, we have had no no- 
tice until this moment. I state honestly to the court that 
we may have it and we may not. It is a paper of abso- 
lutely no use of any kind at the present time and has 
not been for a long time. Now these gentlemen knew, 
they knew as far ago as the trial of the Brennan ease, 





1094. 


that there was a contract of that kind entered into be- 
tween us, Mr. O’Donnell and others, with reference to 
all of the plaintiffs, or nearly all of them, at the time 
that these suits were begun. There has been no notice 
served upon us to produce this old contract. We haven’t 
attempted to locate it and I don’t know whether we have 
got it or not. They knew we had it and if they wanted 
it—they knew at least in the Brennan ease that the con- 
tract had been subrogated a long time before that time, 
so if they wanted to have that old contract under those 
circumstances notice should have been served in the 
matter. 

Mr. CurpeerFIEtp: I want to take sharp issue with you 
when you say we knew of the contract in this case. We 

4866 knew nothing about this case at all, although we had a 
suspicion there might be. So far as its being abrogated 
is concerned we don’t know it, and don’t think it is the 
ease. ; 

(Examination continued. ) 

Q. Now, you say there was some verbal agreement 
afterwards? A. Why, Mr. Hazen, representing the Coal 
Company and Mr. Duncan and myself had an agreement 
in the office in La Salle. I cannot fix the date. I know 
Mr. Wyeth died only a short time ago. It was before his 
death, how long I do not know. The contract was that 
we were to have reasonable compensation for all our 
services. That contract was made after the declaration 
had been filed and after we had entered upon the prep- 
aration of this case. I do not remember what the written 
contract contained. At the present time I do not know 

4867 what the contents of the other contract were. I knew 
it at the time we modified it. I don’t know how I hap- 
pened to forget it in the meantime. I have never seen 
the contract; I might have signed it; I don’t know 
whether I did, but I have never seen the contract. The 


1099 


contract has always been down in this part of the coun- 
try, the written contract I mean. I don’t know the con- 
tents of that contract. I simply do not remember, my 
memory does not recall. I cannot say when I forgot. 
We had different contracts providing for different 
amounts of compensation with different clients. I would 

4868 not want to tell you that I know the amount of this 
compensation. I simply don’t know. I knew it at the 
time we modified the contract, but I suppose the lapse of 
time has caused me to forget it. I do not remember any 
of the provisions of the contract at this moment. I 
think I was a party to it; suppose I would have had the 
right to its possession. I never had possession of it for 
one moment. I am willing and anxious it should be pro- 
duced, that is all I can say. I don’t know whether I will 
make an effort to produce it or not. 

4869 I was employed in a large number of cases against, 
the Sanitary District involving the question of overflow 
of lands in the Illinois Valley. My notion was that there 
were between 90 and 110, but I never counted them. [ 
remember once I estimated 110, but I am not sure about 
that. I presume I am employed in about forty cases in 
La Salle County. I don’t know that I am employed in 

4870 fifteen cases in Grundy County. I have, within the last 
two years, been employed in the Johnson case; before 
that I commenced a couple of cases, or three cases up 
near the mouth of the river, but I never had any other 
cases in Grundy County. 

T don’t remember that I am employed in twenty-one 
cases in Putnam County. I am not employed with Mr. 
Trimble and Mr. Duncan in some eases there. 

IT was employed in Bureau County in thirty-three or 
thirty-four cases, all the Sanitary District cases in the 
county. 

4871 JI was employed in several cases in Marshall County. 


1096 


I do not know that I was employed in 125 cases. The 
record shows it. JI think I was employed in as many 
as 110 cases altogether. 

When I secured these employments I commenced to 
prepare a general form of declaration to be used, which 
would contain all the allegations that I considered neces- 
sary, and provided for the insertion of the description 
of the property, and had a large number of copies print- 
ed. The labor in preparing this case involved all the 
cases in which I was employed. I cannot tell you how 
long I was engaged, the number of days, in preparing the 
declaration in this case. 

4872 ©. You were just long enough employed to fill in the 
descriptions, wasn’t you, a mere clerk’s work, wasn’t it? 
A. Ipresume that is so, as far as making the declaration 
is concerned, yes. 

I appeared upon the taking of the depositions. The 
depositions were taken in substantially all the counties 
with the exception of Grundy County in which I was 
employed. Other counsel appeared upon the taking of 
these depositions, Judge Curran, and Timothy Beach of 
Lincoln, and a number of other interested counsel. Very 

much of the work connected with the taking of these 
depositions was performed by these gentlemen that I 
have mentioned. | 

4873 After the depositions were taken they were printed 
by wholesale and copies sent around in boxes to the dif- 
ferent counties. The labor which I performed in that 
behalf extended equally to all cases in which I was then 
interested, which by stipulation the depositions were to 
apply to. 

Q. How many times do you charge for the taking of 
those depositions? A. Why, I haven’t made any esti- 
mate of the time as applied to this case; it should bear its 
proportion of the cost simply, should bear its propor- 
tion in this case. 


1097 


I did no particular work in this case in reference to 
the taking of depositions; it was simply done in refer- 
ence to the scores of cases which were then pending. I 
tried to make an investigation of the flow of the Sanitary 

4874 District water and of the water originally in the Illinois 
River through the agents of the Sanitary District; talked 
to them. 

Q. With the exception of the particular questions in- 
volved in this suit, that is, the contour of the land and 
the effect of the water on this particular piece of land, 
these other questions had been well determined, had be- 
come familiar to you by reason of your trial of other 
eases, had they not? A. Yes, and as the time progressed 
and other cases were tried, we had to meet again and had 
interviews because of the defenses the Sanitary District 
introduced, and we were learning more from time to time. 

I have tried a number of cases against the Sanitary 
District, and during the time that this trial was going on 
I was trying two cases during practically all the time 
in Bureau County. I am making claims for fees for the 
trial of those cases. 

4875 (. And in your statement of fees in those cases will 
you make claim for the same labor that you have de- 
scribed, the preparation of the declaration and the taking 
of the depositions, and pile it up a number of times in 
the different cases, or do you exclude that in those other 
cases; in other words, is this the only case wherein you 
present a claim for that? A. I have made my state- 
ment of what I did in the preparation according to the 
facts I have just stated. What I did I have stated. What 
I did for all the cases I have stated. How you character- 
ize it I do not know. I did it, that is all. You partici- 
pated in the depositions and you are familiar with it. 

Q. In the Smith case and the Albert Miller case in 
Bureau County, settlement has been arrived at in which 


1098 


you received compensation from these clients on the the- 
ory of work you had done which was done for all the 
cases, did you not? 

Objected to by plaintiff. 

Mr. CuriPEerFIELD: My point is this, your Honor, if you 
will allow me, please. Here there is a recitation of gen- 
eral work, and any one hearing this for the first time 
would suppose that all this work had all been done in 
this case and therefore should be charged for. It was 

4875 not done in this case; it was done in the other cases, and 
today in Bureau County there are two cases pending 
wherein there is a claim for these services which will be 
made here, and it has been made in the other cases, and 
we ought to come to a point sometime where the bill is 
paid. 

Mr. Duncan: I don’t care to have a misunderstanding 
here on the part of counsel. The witness testified very 
clearly that certain of his work, such as looking up the 
Sanitary District channel, the Chicago River, the taking 
of depositions, and so forth, was done in behalf of all 
these cases; and certain other work was done in behalf 
of this case particularly and applies to no other. The 
witness has not said, nor does counsel for the plaintiff 
say, nor does the plaintiff itself expect to be paid any part 
of the work excepting what in the judgment of the court 
would particularly apply to this particular case, but this 
case should stand its proportion of it, and that is all any 
other case has been asked to do. 

The Court: Read the question. If it refers to the 
cases that the witness says he was trying while this case 

4876 was being tried, I will let him answer; otherwise not. 

Mr. Curperrietp: There are three of those cases that 
were tried down there? 

The Witness: In Bureau County. There were three 
of the cases up to the time covered by this trial where 


1099 


a claim for attorneys’ fees was pending and undisposed 
of before that court. On two days that there was a hear- 
ing in connection with this trial, court had adjourned 
down there, but I was engaged in the trial of the cases 
down there with the exception of those two days all the 
time this case was on trial. 

In Bureau County I was assisted by Mr. Trimble of 
Princeton and Mr. Doyle of La Salle. Mr. Doyle is a 
member of the firm of Duncan, Doyle & O’Conor. I was 
not present in the court room for so much as a single 
hour during the trial of this case, and so far as the court 
room work is concerned did not participate at all. 

The sixteen days I have mentioned were all for matters 
pertaining to this particular case, except allowing a day 
or two for the declaration and commencing the suit in 
connection with other suits down here and for the depo- 
sitions. Prior to the commencement of this suit I did 
not particularly discuss this case other than the descrip- 
tions, at the time of making the declaration. I cannot 
give you the date of those sixteen days. I spent a day 

4879 with Mr. Wyeth. That interview was had before any 
contract was made. There were three days, the one with 
Mr. Wyeth at his home, one at the general offices and one 
at the office of Duncan & O’Conor at Ottawa which I 
charged for. This contract was made and after the con- 
tract was abrogated I met Mr. Duncan and we spent a 
day at the offices in La Salle. Then I met Mr. Hazen at 
Mr. Duncan’s office another day, three of them altogether, 
one day spent down in La Salle. That was long after the 
filing of the declaration and before the written contract 
was abrogated. J cannot say accurately how long before 
the actual trial the contract was abrogated; it may have 
been three or four years; it may have been three or four 
years after the filing of the declaration. 

Q. Now, isn’t it true that the only reason which you 


1100 


had for abrogating this contract was for fear if there 
was a special contract there could be no claim under the 
statute, and isn’t it true that your understanding re- 
mains the same as to compensation with the coal com- 
pany? A. No, our understanding is different. 

The reasons you have stated did not cause the abro- 
gation of the contract. The reason the contract was ab- 
rogated is that the suits became more and more trouble- 
some by reason of delays, the death of many witnesses 
and the lapse of time, and we had a talk with Mr. Hazen 
and made a new contract with him. No specific sum was 
discussed. 

4882 I have not been in court since the commencement of 
this trial until the question of attorneys’ fees came up. 

4883 Mr. Duncan examined me in chief while upon the wit- 
ness stand. He is the same Mr. Duncan who is entered 
of record as counsel in this case. 


4884 Vincent J. Duncan, a witness for the plaintiff, being 
sworn, testified as follows: 


Direct Examination by Mr. O’Donnell. 


My name is Vincent J. Duncan; practiced law in Ot- 

tawa, Illinois, since June 1, 1893. In 1904 and 1905 was a 

4885 member of the firm of Duncan, Doyle & O’Conor. Know 

Mr. Wyeth; he resided in Chicago in 1904, secretary of 

the La Salle County Carbon Coal Company. Its coal 

mines were located in the Township of La Salle, La Salle 

4886 County. Knew Mr. Hazen. In October, 1904, he was 
treasurer and assistant manager to Mr. Wyeth. 

Our firm was employed in this matter in the fall of 

1904, and individually I performed certain services for 

the plaintiff concerning this suit before the commence- 

ment of the suit. The first service I rendered was at a 

conference with Mr. Hazen which lasted nearly half a 


1101 


day going over the lands with him, which was prior to the 

4887 conference subsequently had with you a few days after. 
Some time before suits were begun you came down to 
Ottawa in reference to this suit and a number of other 
suits in which yourself and our firm were engaged as 
attorneys, and brought a pencil draft of a proposed dec- 
laration with you to fit the suits in which the Sanitary 
District was to be defendant and the land owners plain- 
tiffs. We conferred over the declaration, prepared it for 
printing, it was printed and I looked after the proof and 
proper arrangement of it, whatever little work there was 
connected with that. Afterwards the printed forms were 
completed and delivered to us, and with you helping we 
prepared the declaration in this case together with the 
declarations in a number of other eases. The declara- 
tion in this case consisted simply in using the printed 
form provided as I have described and inserting in them 
the descriptions of the land, which in some instances were 
not easy to secure, signing the declaration and filing it. 

4888 We used the descriptions in the declaration that were 
also used in the notice. Subsequently my appearance was 
entered for the plaintiff and has continued on the records 
since that time. I have been in court on every occasion 
when a settlement of the pleadings took place or a court 
order entered down to the time the trial began. Since 
the commencement of the suit I have had at least a dozen 
conferences with Mr. Wyeth and Mr. Hazen, and I went 
to La Salle for the special purpose of working on this 
case about seven or eight days. 


4889 James L. O’Donnewtu, a witness for the plaintiff, re- 
ealled for further cross-examination, testifies as fol- 
lows: 


Q. Mr. O’Donnell, do you mean to state that on the 
demurrers there was any special argument in this case, 


1102 


or on the declaration generally, or didn’t the arguments 
apply to all the cases? A. Why my recollection is it 
applied to more than one case. How many I could not 
say. 

Q. Don’t you know as a matter of fact and recollection 
that the orders were general to all the cases in La Salle 

4890 County upon one argument and on presentation? A. [ 

should say not. | 

Q. Don’t you know the only demurrer that ever was 
argued in La Salle County in connection with any of 
these cases was a demurrer that was argued before Judge 
Blanchard, before his death, and upon his ruling pleas 
were filed in 1905 and have never been changed or 
amended since with the exception of the special plea in 
this case that was submitted to the court without argu- 
ment? A. That may be true, I would not swear to all 
the cases. I know there was more than one case involved 
in the argument, but I don’t know just how many. 


Re-direct Examination by Mr. Duncan. 


I consider the services rendered in this case as being 
necessary to the interests of the plaintiff in this suit. 


Whereupon a recess was taken until one o’clock P. mM 
January 11, 1913, 1:00 Pp. m. 


4891 Vincent J. Duncan, a witness for the plaintiff, recalled 
for further direct examination, testifies as follows: 


Before adjournment I spoke about conferences had by 

Mr. Hazen and Mr. Wyeth with me in Ottawa, in our 
office and also my visits to La Salle. There were a num- 

ber of pleas filed in this case that were similar to the 
4892 pleas filed in the other cases here, and in connection 


1103 


with all of the cases here in this county against the Sani- 
tary District we came into court on a number of different 
days. The orders entered and the record in this case 
would show the number of days. 

This case we feel should be charged with its pro- 
portion of those services. ‘There is one plea however, 
in this case that did not appear in any other case, and 
that was the special plea filed denying, as I recall it now, 
the right of the plaintiff to own the surface of any land 
but that which was necessary for the purposes of its 
incorporation, and that it could not claim damages to any 
such real estate which it had no right to own. We pre- 
pared and filed a demurrer to that plea and we prepared 
and argued the demurrer and came into court and had 
the demurrer sustained. How much time was spent in 
court at that time I cannot now recall, but I remember 
very clearly of spending some little time in the prepara- 
tion of the case and the finding of authorities on that 
question. 

I believe however that the question raised by the de- 
murrer was submitted to the court without much argu- 
ment. I think that counsel for the defendant attended 

4893 the day of the hearing of the demurrer. 

From the time of the commencement of this suit until 
the present time, there were a number of orders for con- 
tinuances from term to term. The main ground was the 
absence of one or the other of the counsel representing 
the defendant, in the active attendance on the Legisla- 
ture. We tried to procure a trial in the spring or early 
summer of last year, had the case set for trial and mo- 
tion was made for continuance supported by affidavits. 
There was an extended hearing and some attorney from 
Chicago representing the district came down and took 
charge of the motion, presented it to the court, and the 
court sustained the motion and granted the postpone- 
ment. 


1104 


4894 With reference to the motion for continuance we were 
here in court quite a little time and we prepared and I 
think spent the larger part of the day on the question 
that was raised by that motion. 

I visited the offices of the La Salle County Carbon Coal 
Company at La Salle in connection with this case at least 
twice with you, and on this case especially looked over 
the deeds and maps and records of the La Salle County 
Carbon Coal Company, and conferred with Mr. Hazen as 
to the past history of the land and checking up the des- 
eriptions that we had in our declaration with the records 

4895 that they had there in their office, and conferred gen- 
erally about the work necessary to the preparation for 
the trial. There were half a dozen witnesses or so pres- 
ent. At a time in addition to the two conferences at 
Hazen’s office, I went over the land on three occasions; 
twice with Mr. O’Donnell and Mr. Hazen. The other 

4896 time I was accompanied by Mr. Butters, Mr. Hazen and 
Mr. Swift. 

I never visited any of the land in Section 14. When 
Mr. O’Donnell and Mr. Hazen was with me we went over 
Sections 21, 22 and 23, and a small part of 24. 

In addition to what I have already testified, all the 
usual work done in preparation for a trial was engaged 
in by me to a more or less extent. When the cause was 

4897 finally called for trial, I was home. On September 23, 
1912, I started in the trial of a case called in Bureau 
County of Reinke vs. The Sanitary District. We con- 
tinued the trial during the week beginning September 
23d, and I returned there on the week beginning Septem- 
ber 380th, and continued in the trial all of that day, and 
on that night I was taken sick, and all of Tuesday. I 
entered court on Wednesday and in the afternoon of that 
day was unable to continue. The doctor diagnosed my 
illness as pneumonia and sent me home. I was at home 


1105 


for quite a little while. The attack was not very severe 
but under instructions from the doctor I could not enter 
any place where there were many other people and there- 
fore could not engage in a trial at the time. 

I was at the office a great deal of the time but at home 
steadily for two or three weeks. 

4898 Not being able to engage in the case myself and on ac- 
eount of your attendance at Princeton being still con- 
tinued in the trial there, it made it necessary to have 
Mr. O’Conor and Mr. Butters take charge of it. Before 
they entered upon the preparation of the case, I con- 
ferred with Mr. O’Conor a number of times, also with 
Mr. Butters. Mr. Butters and I visited La Salle together, 
we took an automobile and went over the ground with Mr. 
Hazen and Mr. Swift. 

At the time the trial began my physician advised me 
it would not be safe for me to go into the trial of a law 

4899 suit at that time. The trial continued from November 
7th, until the first Saturday in December, when the jury 
returned its verdict. The case was submitted to the jury 
the first Friday of December. 

I worked with Mr. Butters and Mr. O’Conor every 
Saturday and some of the Sundays during the trial. I 

4900 prepared many of the instructions and helped in the 
preparation of all of them. Mr. Butters and Mr. O’Conor 
worked evenings during the trial. JI have been engaged 
in the general practice of both law and equity. 

4901 Q. What in your opinion were the services of Mr. 
Butters and Mr. O’Conor reasonably worth according 
to the usual and customary fees at this bar for the time 
actually spent in the trial of this case? 

Mr. CuyrpereIELD: I object to that as incompetent, 
irrelevant and immaterial, not the proper test to govern 
the assessment of fees. 

Objection overruled; to which ruling to the court, 


1106 


the defendant by its counsel then and there duly 
excepted. 

A. Well, I would find it easier and more in accord- 
ance with the exercise of my judgment on the basis which 
you have mentioned, and other matters, to give an opin- 
ion as to the value of the services rendered by—of all 
of the services rendered on behalf of the plaintiff in the 
case. 

Before that question is put I would like to make a sug- 
gestion that there was other services rendered by me 
that I have not testified to. During the trial there were 
a great many witnesses here on behalf of the plaintiff and 
it occurred quite frequently that witnesses were examined 

4902 by me in the office and their knowledge of the land as- 
certained, and the result of such examination was given 
to the attorneys engaged in the trial. There were a 
great number of witnesses examined nearly every day. 
I was not here but I knew what was going on. I assisted 
in that line of work. Many of the witnesses resided out 

4903 of the City of Ottawa. Court began at nine o’clock in 
the morning and ran until twelve, beginning again at one 
fifteen and continued until five. In a general way I was 
acquainted with the questions that arose both of law 
and fact. 

Q. Now you may state whether or not from your 
knowledge of the case and your observation of the case, 
the services rendered by yourself, Mr. O’Donnell, Mr. 
Butters and Mr. O’Conor were necessary to the proper 
trial of the case. 

Mr. CuiperFieLtp: I object to that as calling for the 

4904 conclusion of the witness upon a matter which the court 
would have to determine from the evidence in the case. 
Objection overruled. 
To which ruling of the court, the defendant by its 
counsel then and there duly excepted. 


1107 


A. I think they were. 

Q. Now, what in your opinion were the services of 
the four attorneys whom I have named throughout the 
case, reasonably worth according to the usual and cus- 
tomary fees for like services at the La Salle County bar 
at that time? 

Mr. CuiprerFIELp: I object to that as incompetent, ir- 
relevant and immaterial, no proper foundation has been 
laid, not the proper test to be adopted for the assess- 
ment or determination for the value of attorneys’ fees. 

Objection overruled; to which ruling of the court, 
the defendant by its counsel, then and there duly 
excepted. 

A. In my judgment they were worth $6,000 at least. 

At the time the case was tried the contract in existence 

4905 with plaintiff was that its attorneys should receive rea- 
sonable compensation for services rendered. I was au- 
thorized by the plaintiff to employ Mr. Butters. 


Cross-Examination by Mr. Chiperfield. 


At the time Mr. Butters was employed I told him 
4906 that he should receive reasonable compensation for his 
services, such. proportion as he earned. That was to 
be determined by him and his client. 
I have found the original contract and will show it to 
the court. 
Mr. CurperrieLp: I ask for it to be produced, if the 
court please, in the record. 
~Mr. O’DonneELL: Not as a witness, he hasn’t a right to 
make the witness do that. 
Mr. Curprrristp: I don’t care whether he is a witness 
or whether— 
Mr. O’Donneti: Mr. Duncan is a witness and he ean- 
4907 not be compelled to do anything with the reporter at all 
Mr. CurpPerFieLtp: Is that all? 


1108 


Mr. O’DonneLtt: But whether Mr. Chiperfield is go- 
ing to—if he asks him to produce it that is one thing, 
but Mr. Dunean is not his servant just now. 

Mr. CurperrieLp: Jam very glad of that, but my ques- 
tion is this, if he will do that. If that is not a proper 
question objection will lie, but I don’t care to be lectured 
by the gentlemen who so recently arrived. If he had 
been here longer I might submit to it. Now my question 
is if he will hand it to the reporter and have it marked 
with an appropriate exhibit number. I want to offer it 
in the record. If I cannot get it in the record I cannot. 

The Courr: I think I will let him answer the question. 

The Wirness: If the court please, the contract in 
question was signed by this plaintiff and a number of 
others. Who else signed this contract in our judgment, 
we submit to the court, has no business in this hearing, 
nor has it any business as a part of this record. 

Mr. CuirrerFieLp: I object to this statement by the wit- 
ness unless he is making it as counsel. There is a ques- 
tion pending and counsel here representing him. 

The Wirness: I am answering that question to the 
eourt, and I presume that my remarks are addressed to 
the court. 

4908 Mr. Cureerrietp: I am objecting to the statement, if 
your Honor please. 

The Court: I will let him finish his answer. 

To which ruling of the court, the defendant by its 
counsel, then and there duly excepted. 

The Witness: I would have no objection whatever to 
counsel on the opposite side seeing the body of the con- 
tract or the signature of this plaintiff to the contract. 
Farther than that counsel in this case has no interest 
whatever in this contract, and that or any other part of 
the contract has no business in this case as we under- 
stand it, and we submit that question to the court. 


1109 


Mr. Cureerrietp: Mr. Sheriff, will you please ask the 
clerk to come in. 

The Court: Let me see the contract. 

(Witness thereupon handed document to the court.) 

The Court: I will order the contract produced for 
the benefit of counsel on the other side in the record, and 
the signature of Mr. O’Donnell and Mr. Dunean and the 
signature of the plaintiff in this case, but I will sustain 
the objection to the exhibition of the signatures of other 
plaintiffs or persons interested in suits against the Dis- 
trict, as I aim not able to see the relevancy of that, and 

4909 I am not able to see that it is of any consequence to the 
defendant in this case. 

Mr. CuHIPerFIELD: Who the others may be? 

The Court: Yes. 

Mr. CuiperFieLp: I am not at this time trying to pry 
into anything except that which affects these parties, that 
is all. 

The Court: You may have the contract and you may 
have the signature of James L. O’Donnell and Vincent 
J. Dunean, and the signature of the La Salle County Car- 
bon Coal Company by H. 8S. Hazen, treasurer. That in- 
eludes everything connected with this contract except a 
multitude of other signatures, and so far as I can see the 
defendant is not interested in that and it will not benefit 

4910 them any. You may look at the body of the document. 
You can read that part. Read it. 

Mr. CHIPERFIELD (reading): This agreement made 
this Third day of October, A. D. 1904, between James L. 
O’Donnell, and Vincent J. Dunean, parties of the first 
part, and the undersigned owners of land, parties of the 
second part; witnesseth, 

That the parties of the first part hereby agree to pre- 
pare and prosecute in the Circuit Courts of the counties 
in which the land involved is situated, suits in behalf of 


1110 


each of the undersigned property owners to recover dam- 
ages to said lands against the Sanitary District of Chi- 
cago, and to conduct said cases to final judgment if neces- 
sary, and to argue the same in the Appellate and Su- 
preme Courts of the State of Illinois, in case it shall be 
necessary, in consideration of the following compensa- 
tion: Such sum of money as may be allowed in any or 
either of said cases by the trial court as courts under 
the law, and in addition ten per cent. in each ease of the 
amount recovered to be paid to the different property 
owners, and in case said claims for damages, or any or 
either of them, are settled and adjusted, ten per cent. of 
the amount paid in such settlement or adjustment. 

The parties of the second part in consideration of the 

4911 premises severally agree to pay to parties of the first 
part traveling expenses, and necessary cash outlay in the 
preparation and conduct of such suits to procure the at- 
tendance of necessary witnesses, including surveyor or 
civil engineer, if required, for the trial of said cases, to 
advance necessary fees of court officers and fees for 
for printing if necessary in the Appellate or Supreme 
Court, and to pay the above compensation to the party 
of the first part in case of recovery or settlement. 

It is further agreed between the parties hereto that 
in either case should there be no recovery upon final trial 
no compensation will be paid in such case to parties of 
the first part for their services. Should either land 
owner decline to prosecute his suit to final judgment or 
settlement, then he shall pay to the parties of the first 
part reasonable compensation for services. rendered. 

Witness our hands this Third day of October, A. D. 


1904. 
James L. O’DoNNELL, 


Vincent J. DuNcAN. 


~ And among other signatures is the ‘‘La Salle County 
4912 Carbon Coal Company, By H. S. Hazen, Treas.’’ 


TELL 


I cannot state how long it was before the contract was 
abrogated but it is in the neighborhood of three or four 
years ago. At the time this case was being tried and dur- 
ing all the time that this case was being tried, certain 
cases in Bureau County were being tried in which my 
firm was engaged as counsel. Several members of our 
firm participated in the trial in Bureau County. I began 
it and stayed there from September 23d until October 3d, 
and Mr. Doyle my partner took my place and remained 
until the conclusion of the trial work in Bureau County, 
some time in the middle or latter part of December 
Thereafter and until practically the present time I was 
advised by my physician not to enter a court room for 

4913 a period of probably eight weeks after October 3d. Dur- 
ing the trial of this case I did not feel as if I could safely 
engage in trial work in the court room. Prior to that 
time it was my intention to try the case if I had been at 
liberty to do so. 

I and my firm are claiming for services during the 
same time this case was pending in Bureau County. I 
do not understand when a firm is employed that it is in 
contemplation of law the members of the firm. 

4914 Mr. Cuirperrietp: @. I will ask you to state what has 
been the annual receipts of your firm for the years 1909, 
10°11 and 7122 | 

Mr. O’Donnetu: To which I object as immaterial. 

4915-16-17 Argument and sustaining of objection. 

To which ruling of the court, the defendant by its 
counsel then and there duly excepted. 

Mr. CHIPERFIELD: Q. When you say that a fair fee 
in this case would be $6,000, what have you allowed per 
day for court work? 

4918 A. I did not take into consideration in estimating the 
value of the services rendered any particular items. 

If they were to be paid only for the days work in court, 


1112 


~E should say that they earned at least $75 a day each. 
We have been general counsel for the La Salle County 
Carbon Coal Company the last year or two. If you strip 
the balance of the services off of the case, I think the 
trial of the case was worth $150 a day. I think the actual 
4919 trial work was something like twenty-two or twenty- 
_ three days including the day of the reception of the ver- 

4920 dict. I helped on the outside. I do not know that there 
was not a single question asked of any witness in this 
ease, so far as the court room work was concerned, on 
behalf of the defendant except by myself. JI was not in 

4921-22 the court room at any time. I-do not know whether 
as a matter of fact the statement in this case was made by 
yourself, that every witness examined by the defense was 
examined by yourself, that every witness cross-examined 
was examined by yourself, and that the argument was 
made by you. I took no part in the trial of the case what- 
ever in the court room. This was my first arrival here 
in the matter of costs. I have already answered to the 

4923 effect that insofar as anything done in the court room 
is concerned I don’t know a thing about it. 

4924-25 I will be unable to give you exact answer as to the 
number of days I put in on the pleadings in this case, but 
in my best judgment the work incident to the pleadings 
in this case, would make, so far as my services are con- 
cerned, five or six days. The filling in of the description 
was not the only thing necessary. The declaration 

4926 is there and it shows how much space the description 
takes up. I cannot answer that with exactitude. We had 
the descriptions for the notice. The length of time taken 
to fill in the descriptions I could not tell. It would be 
purely clerical aside from supervision to see it was done 
right. 

4927 The pleadings in this case were not argued particularly, 
they were argued generally. I think this case should 


1113 


bear its proportion of the services insofar as that fea- 
ture of the work done is concerned. Regarding the plea 
that the corporation did not have the right to own prop- 
erty in this case, I am not sure you were here. I think 
there was some counsel that was here. I know there was 
somebody here. 

(). There was absolutely no one in case appeared on 
that plea. 

Mr. CurrerFreLp: I sent that plea to Judge Eldridge 
with a letter stating that we filed the plea and that it 
would come up in the usual way and that we did not care 
to appear. 

4928 Mr. O’DonneLL: I guess you are right about that. 

The Witness: I think there was somebody here just 
the same. My recollection is there was one of the at- 
torneys here. There was no argument produced by any- 
one and the plea upon the demurrer being filed was held 

4929 bad by the court without argument. In general all the 
pleadings were settled with reference to these cases. 
There were like pleas in the balance of the cases and 
they followed the ruling in that case. | 

T lived in La Salle all my life up to ’93, knew the land, 
knew the river and there was nothing new to me about 
this proposition up to the time I moved to Ottawa. I 

4930 knew the physical condition in a general way. Up to 
the time this case was commenced I had tried one case 
against the Sanitary District and had assisted in the 
trial of one case and had begun the trial of the second 
case, and in those cases had become familiar with and 
had investigated the questions that arose except those 
that were peculiarly incident to this land. 

I spoke about preparing instructions. I had to draw 
some of them, they were not simply the same instructions 
that may have been used in other cases; some of them 
were and some of them were not. 


1114 


4931 Q. It is also true that the preparation which you have 
made in this case and the facts which you have gained 
knowledge of or elicited, you expect to use and are using 
in other cases which you are trying against the Sanitary 
District, isn’t that true? A. No, except insofar as I 
have testified. 

I think you are mistaken about my being engaged in 
over 100 cases against the defendant at the present time 
involving the question of the overflow of the Illinois 
River. I should say at the present time there are pend- 
ing not over ninety. I think there are somewhere in the 
neighborhood of ninety still pending. In connection with 
some of those cases I have made an investigation of the 
physical conditions. 

4932 I was present in Chicago when the depositions were 
taken but not at Joliet. I did not ask any questions 
whatever upon that occasion, although I conferred with 
other attorneys who were conducting the examination, 
other attorneys who were concerned in a similar man- 
ner. 

Q. ‘When you say that a fair and reasonable charge 
was $150 a day which should be made for the trial of 
this case, you would bring the balance of the amount up 
to $6,000, what would you fix per day for the work up to 
that time? You have testified to perhaps a dozen days 
and Mr. O’Donnell has testified to about sixteen. A. I 
have testified that in my judgment the usual and ordi- 
nary fees for services rendered in this case, as a whole, 

4933 in my judgment, taking every item into consideration 
that is usually taken into consideration on such questions, 
is worth $6,000. 

Q. What do you charge for the work out of court per 
day? A. I would charge $6,000 for the whole work. 

Q. Is that the best answer you can make? A. That 
is the answer that I give. 


1115 


Q. Is that the best answer you can give? A. The 
best answer that I can give, and I want it distinctly un- 
derstood that in making that, giving that conclusion, that 
I have personal knowledge of every single bit of work 
done, and based upon my experience of matters of that 
kind that is a reasonable and ordinary charge for the. 
character of work, considering the amount involved, the 
character of the case and the character of the work and 
the results obtained. 

Q. Now, to make up your $6,000 on the basis which 
you have fixed for the trial, it would require $2,750 for 
the work that was done outside. Do you think that the 
investigations that were made, the three or four times 
conferring, the preparation of this notice, the filing of 
the stock declaration, and the taking of depositions and . 
the other work which was divided among a large number 
of cases, was worth in this case $2,750? <A. I think that 
all the work that was done in:this case is worth $6,000. 


4930. Q. Now, answer my question, Mr. Duncan. A. I 
have answered it as well as I know how. 


Q. Now, if you will please answer my question, will 
you please answer my question? A. I have answered 
it, if your Honor please, I think. 

Mr. CHIPERFIELD: I insist now on an answer to the 
question that I asked. The question he answered was an- - 
other question. J think I am entitled to an answer to 
this question. 


The Court: Well, he says he has answered it as well 


as he can. I don’t know as I ought to say he can answer 
it better. 


Mr. CuiperrieLtp: I want to make every effort that I 
ean to get an answer, that is all I can do, and then I will 
proceed to something else. 


The Court: I will give you an exception. 


1116 


Mr. Cuiprerrretp: All right. 

To which ruling of the court, the defendant, by its 
counsel, then and there duly excepted. 

4935 There was only one contest made on a motion for a 
continuance based upon the ground that the attorney for 
the defendant was in attendance on the legislature, but 
in the estimate which I have made that matter does not 
figure appreciably in the estimate which I have placed 
on the value of our services. 

(). Now, you have spoken about your services in con- 
ferring with Mr. Butters and Mr. O’Conor when you be- 
eame ill? A. Yes. 

Q. Do you think the Sanitary District should be called 
upon to make any compensation for the fact that you 
were called out of the case, for consultations that were 
necessary on that account? A. Jam not asking for any 

4936 compensation for services either for ourselves or Mr. 
Butters or Mr. O’Conor for acquainting them with the 
results of the work or the time necessary to do it. 

@. When did they first have any acquaintance with 
this case? A. Well, it was not very long after I first 
got home. When it appeared that the Sanitary District 
cases in Bureau County were going to be for trial and 
would be continued in their trial during the fall, and I 
was at home not well, and that it would be necessary to 
have this case prepared for trial and to try it, arrange- 
ments were then made. J should say that would be along 
about the middle of October or earlier than that. 

Q. If the firm of Duncan, Doyle & O’Conor had been 
able to attend to this case, would it have been necessary 
to have two attorneys engaged? 

Mr. O’DonneEtu: I object to that, your Honor, not 
calling for any fact. 

The Court: I think I will sustain the objection. 

To which ruling of the court, the defendant, by its 
counsel, then and there duly excepted. 


1117 


In the settlement of the pleadings in this case, this 
ease should be charged with its proportionate share. In 
figuring its proportionate share I should say this case 
was more important three times over than any of the 
others. When I say it is important I mean the amount 
involved which should require it to bear a proportionate 
amount of the time and services rendered in that respect 
and the proportion should be based upon its relation to 
other cases. I am not figuring on the financial ad damnum 
of $200,000 as originally made. There is considerably more 
care taken in settling the pleadings in a $100,000 case 
than there is in a $100 case as a rule. 

4938 I do not know that the record will show that every 
amendment in this case that has been made has been 
made because of mistakes of the firm of Duncan, Doyle 
& O’Conor. I do not remember that on the 10th day of 
September, 1905, we amended our declaration. I think 
there was a slight amendment made on the 31st day of 

4939 March, 1912. I don’t remember whether we have 
amended our declaration no less than four times to give 
us an opportunity to linger around the court. 

4940 For services outside of the court room I have made no 
specific charge. 

4941 Q@. I ask you to do so now? A. I have not testified 
as to the value of my services except in connection with 
the services of all the others engaged in this case and ex- 
cept in their connection as a whole proposition. 

Q. Now, will you please answer what you have there 
in your estimate of $6,000 for the services which you ren- 
dered outside of the court room, what the charge per day 
was? A. Well, I have answered that question. 

4942 (). I ask you now if you have not fixed a fee of $3,250 
for the actual trial of the case? A. I did with the modi- 
fications mentioned at that time. 

Q. No, without any modifications. What do you charge 


1118 


per day for services outside of the court room, how do 
you arrive at that? A. In the modification I spoke of 
there is no such contemplation had. | 

Q. Now, why do you contemplate a different standard 
for the services? A. I have said what the services out- 
side the court room are worth. 

Mr. CurperFietp: If your Honor please, I submit the 
witness has not stated, that is not true. I am asking him 
to state and I want to know as to the fact of the matter 
and we are entitled to it. 

The Wirness: I told you that the services rendered 
outside of the case together with the services rendered 
in the court room when I arrived at them generally and 
as an entirety are reasonably worth $6,000. 

Mr. CuiperFIELD: I move to strike the answer as not 
responsive to the question. 

‘<The Court: IJ sustain the motion. 

‘Mr. CHIPERFIELD: @. Now, I ask you again if you 
please, to state in your estimate what you have charged 

4943 for the services outside of the court room per day? 

A. Well, considered in connection with the whole case 
I should say that they and the other services together 
would be worth $6,000. 

(). In order not to prolong the matter or to enlarge 
the record, I ask you finally for the last time, I ask you 
again if you will state now in your computation what you 
have charged and what you think would be fair and rea- 
sonable for the services outside of the court room per 
day? A. I have not, in giving my estimate of the serv- 
ices rendered in this case, separated any items, or put 
in any items of that kind. 

Q. Will you now do so? A. No, 


% 


CEES 


Re-direct Examination by Mr. O’Donnell. 


The Witness: I have got a statement to make if your 
Honor please. 

4944 Mr. O’DonneLL: You may make any explanation that 
you desire. 

The Witness: One statement I desire to make, and 
that is in my testimony on direct examination the ques- 
tion was asked of me which included the services, the 
value of all the services rendered on behalf of the plain- 
tiff in reference to this case, and there was no subdivision 
into items of any kind and I estimated only the value of 
all the services as a whole. 


ANDREW J. O’Conor, a witness for the plaintiff, being 
sworn, testified as follows: 


Direct Examination by Mr. O’Donnell. 


My name is Andrew J. O’Conor; I am a lawyer, resid- 

4945 ing in LaSalle County. Practiced ten years in Ottawa, 
engaged in general practice. I am one of the attorneys 

for plaintiff. I was engaged in the actual trial in this 
case nineteen days. The case was called for trial on the 

Sth of November when we had some discussion in rela- 
tion to the pleadings, which took up part of the afternoon, 

and the case then went over until the following Monday 
morning. My connection with the case started about two 
weeks before that. I familiarized myself with the case 
4946 more or less in a general way. I went to LaSalle I think 
on four or five different occasions before the case was 
actually called. I think two of the occasions however 
were subsequent to November 7th after it was passed 
temporarily. Went down and went over the land. We 
made preparation for proof of title by getting the deeds 
4947 and looking up the abstracts and made some investiga- 


1120 


tion in the recorder’s office, and looked up the law on 
that question. There was a plea filed denying title. 

From the time the jury was selected until the case was 
submitted to the jury, I participated in the trial. The 
first day I think we started in at ten o’clock, and I think 
that was true of each Monday that the court would ad- 
Journ over from Friday until Monday morning at ten 
0’clock, or about ten thirty. Other days the court started 
at nine in the morning and ran until five o’clock in the 
afternoon. Some days court adjourned at a quarter to 

4948 five and one or two days we ran until five-thirty. 

The plaintiff, I think, called thirty-eight witnesses in 
addition to the testimony of the witnesses who appeared 
in the depositions. The defendant, I think, called ninety- 
four witnesses. 

4949 On the trial one of the main issues upon which testi- 
mony was taken was the value of the land and as to the 
condition of the land before and after the turning in of 
the Sanitary District water. The scope of the examina- 
tion comprehended men who were actually on the land 
and worked it and the testimony introduced by the de- 
fendant included testimony of witnesses from up in Wis- 
consin in relation to the condition of the Desplaines and 
Fox, Rivers, and witnesses from Chicago in relation to 
the condition of the Chieago River and its branches. 

4950 There were a number of witnesses brought in from Iro- 
quois and Ford Counties. They also had some expert 
witnesses from the University of Illinois in relation to 
the growing of crops; a number of river men from Henry 
and Peoria and farther down in relation to the condition 
of the river prior to the construction of the levees. 

There were quite a few maps introduced and 281 pho- 
tographs. 7 

4951 My preparation was confined to the land on Sections 
21, 22 and 23, and a small part of 24. During the trial 


1121 


it was necessary to see the witnesses and we interviewed 
a great number of them, sometimes in the morning hav- 
ing them come in on one of the earlier cars and talking 
with them briefly before going into court. Also during 
the noon hour. J worked prior to nine o’clock in the 

4952 morning and also Mr. Butters and I worked in the even- 
ing ordinarily until ten o’clock and sometimes a little 
later, other nights not so late. During the trial I spent 
two Saturdays and Sunday at La Salle. I spent one Sun- 

4953 day afternoon at La Salle with Mr. Hazen going through 
the records seeking to produce papers asked for by sub- 
poena duces tecum. I did some work during the trial on 
the preparation of the instructions, but most of the work 
along that line was taken care of by Messrs. Dunean and 
Butters. 

It is hard to say how much time I spent in prepara- 
tion before the trial, but I should say two weeks, more 
or less. ‘Towards the latter part, I will say the last week, 
I presume it took all of my time. During the trial we 
were quite busy both during our presentation and during 

4954 the presentation of the defense, with questions that were 
arising’ during the trial of the case, and figuring out just 
exactly how different things should be met, whether it 
would be necessary to bring in evidence in rebuttal. And 
there were questions as to competency of exhibits, maps, 
plats and diagrams and things of that kind, and ques- 
tions of law. It was a case during the trial of which you 

4955 could hardly afford to devote any time to anything else. 

The record consists of 4,261 typewritten pages, of which 
326 or 327 pages were depositions. In addition to which 
there were a great many exhibits. 


Cross-Examination by Mr. Chiperfield. 


The record also included the examination of the jury, 
4956 the statement of counsel in the argument and the remarks 


1122 


of the court, and all the proceedings that occurred on the 
trial. 
I was conversant with the situation and general layout 

4957 of the land in a general way. I had no detailed knowl- 
edge in relation to what the land did or its characteris- 
tics prior to my connection with the suit. Prior to the 
trial I made myself familiar with the facts that Mr, Dun- 
ean had previously prepared, in addition to going to 
work to get ready for trial. I could not go into the trial 
as it was a new matter comparatively to me, without 
preparation as I had expected Mr. Duncan to try the 
ease. My connection before that time with the case was 
of a very general character. The other attorneys had 
seen some of the witnesses and I had a list of them, over 

4958 100 witnesses, and before the trial actually started it 
was my business to see many of the witnesses that had 
not been interviewed before. Mr. Butters was with me 
and there was another voung man by the name of Mcked- 
dron, who was in the employ of the plaintiff. He was 
well acquainted with the men who had knowledge as to 
the eonditions and he suggested names of those who 
might be acquainted with said conditions. Aside from 
the work which I undertook in the way of familiarizing 
myself with -the case, all the other work was work in 
which I participated in the court room, and sometimes 
T worked late at night. 

4959 It is customary for a lawyer to try his case in court 
and do what he ean with reference to it before and after 
the trial. JT had very little to do with the instructions. 

4960 During the time I was engaged in the trial my partner, 
Mr. Doyle, was engaged in the trial of other cases against 
the defendant. While I did not see him I hope to have 
some substantial evidence of that presently. There are 
motions for the allowance of attorneys’ fees in those 
cases, as a member of our firm, for the services of our 
firm at that time. 


1123 


4961 This case commenced on Monday of the week after 
election and continued until the first Friday in Decem- 
ber. There were no sessions on Saturday and the only 
thing done on the last Saturday was the reception of the 
verdict. The first week there were five days of court. 
The next week there were five days, the next week there 
were three days and the next week there were five days 

4962 of court unless we include the time of the reception of 
the verdict, which would make it six days. The number 
of days that we were actually engaged in the trial of the 
case from its commencement to the termination was 18 
days, excluding the day the jury returned its verdict. 


A. EK, Burrers, a witness for the plaintiff, being sworn, 
testifies as follows: 


Direct Examination by M r, O’Donnell, 


4963 My name is A. Ki. Butters; have been a member of the 
La Salle County bar since 1889; first connected with this 
case in March or April, 1912. I spent about two days 
prior to coming into court on the day it was set for trial. 
It was the day it was continued for the term. The first 

4964 day I visited La Salle with Mr. Duncan; this was about 
ten days before the case was set for trial. I knew J was 
going to be in the case, however, several weeks before 
that and talked with Mr. Duncan on two or three occa- 
sions when he reviewed the case to me. Immediately be- 
fore the trial of the case I put in about five days’ time 
and afterwards participated in the trial with Mr. 

4965 O’Conor. Know what attorneys were present on the 
part of the defendant on the trial; Mr. Chiperfield, his 
brother, Mr. Beebe, Mr. Hawthorne and Mr. Malone were 

4966 there. 


1124 


Cross-Examination by Mr. Chiperfield. 


I could not say that as to Mr. Malone he had as much 
as a word with you during the trial. I knew he was do- 
ing work on the case. I assume that it was largely see- 

4967 ing witnesses. I know so far as the trial was concerned 
that the entire work of the trial, except as I have sug- 
gested for a few hours during the reading of the deposi- 
tions, was conducted entirely by you so far as the court 
room work was concerned. Your brother was present a 
small portion of the time, not a large portion. I know 
Mr. Beebe was present a part of the time, but I did not 

4968 keep track of that. So far as the trial of this case was 
concerned, it was conducted or the part of the defendant 
by yourself. You made the opening statement in the 
case, you examined all the witnesses and you argued the 
ease finally to the jury. 


The work I did in the spring of 1912 was caused by 
the incapacity of Mr. O’Donnell by sickness. I did not 
expect to further continue in the case until Mr. Dunean’s 
illness. I participated in the trial of the case the num- 
- 4969 ber of days that Mr. O’Conor has testified to. 


It is customary with any attorney who has the inter- 
ests of his case and of his client at heart, to prepare both 
before and after the court room work, and this case pre- 
sented unusual features in many respects, although my 
experience as an attorney has demonstrated that much 

4970 of the real work of counsel comes in a case both before 
and after the court room work, and of the two the court 
room work is the easiest work. 


4971 


4972 


1125 


Bengamin F, Lincoxn, a witness for the plaintiff, being 
sworn, testifies as follows: 


Direct Examination by Mr, O’Donnell. 


My name is Benjamin F. Lincoln; been a practicing 
lawyer since 1873, one time judge of the County Court, 
La Salle County. I! practice in this county. My practice 

has been of a general nature. I believe I am familiar 
with the usual and customary fees of lawyers in the trial 
and preparation of cases in this county. I heard all the 
testimony of Mr. O’Donnell, Mr. Duncan and Mr. 
O’Conor, but [ did not hear quite all the testimony of Mr. 
Butters. 

Q. Assuming that the services were performed for 
the claimant with the understanding that he was to pay 
what the services were reasonably worth, what, in your 
opinion, were the services so rendered reasonably worth, 
according to the usual and customary fees in this county 
at that time? 

Mr. CurpPerFieLD: Objected to, incompetent, irrelevant 
and immaterial; no proper foundation has been laid and 
that it does not appear—it is not the proper test to be 
employed in the expression of opinion as to the fees. 

Objection overruled; to which ruling of the court the 
defendant, by its counsel, then and there duly ex- 
cepted. 

A. I am aceustomed to estimating services generally 
by the day, and in my judgment the services of the attor- 
neys in this ease would be worth from $50 to $75 per day, 
dependent upon whether they were employed at night. 
If they were employed at night to any extent, my judg- 
ment. would be their services were reasonably worth $75 
per day for such time. 

Q. In a case of this character what in your opinion 


1126 


would be the reasonable value of the services of an attor- 
ney per day in the preparation of the case, necessary 
preparation of the case. | 
Same objection; same ruling; to which ruling of the 
4973 court, the defendant by its counsel, then and there 
duly excepted. 


A. I make no distinction between the preparation of 
the case and trial of the case. I believe the services of 
an attorney are worth just as much in the preparation of 
the case, during the time he is employed in such prepara- 
tion, as in the actual trial in court. 


Mr. CuriperFieLp: The defendant, because of the fact 
no proper foundation has been laid and the proper test 
has not been employed, declines to cross-examine. 


Duncan MacDoveatu, a witness for the plaintiff being 
sworn, testifies as follows: 


Direct Examination by Mr. O’Donnell. 


My name is Duncan MacDougall. I am a member of 
the firm of MacDougall & Chapman; been practicing in 
La Salle County continuously since 1873, engaged in 
4974 general practice. 
Heard testimony of O’Donnell, Duncan, O’Conor and 
Butters. 


Q. What in your opinion would be a fair, reasonable 
compensation for the entire work performed in the case, 
assuming such testimony to be true, in this La Salle 
County Carbon Coal Company case vs. The Sanitary Dis- 
trict, the preparation and trial of it? 

‘Mr. Cuiperrienp: The same objection. I may have 
the benefit of it without a re-statement, or shall I re-state 
it? 


1127 


Mr. O’Donnett: I am willing the objection be under- 
stood. 
Objection overruled; to which ruling of the court, 
the defendant by its counsel, then and there duly 
excepted. 


A. Assuming the service to have been performed that 
the witnesses testified was performed in the case and ap- 
4975 portioning so much of it to this case as ought to be 
that they prepared in part on this case and other cases 
as stated by the witnesses, and eliminating such work as 
was shown to have been duplicated on account of the 
illness of the attorneys, in my judgment a reasonable, 
usual and customary fee for the services necessarily ren- 
dered in this particular case and a fee fixed by contract 
between parties competent to contract in this county, 
taking into account the issues and the importance of the 
suit, would be $6,000. ? 
Mr. CurperFieLD: We move to strike the answer, be- 
cause it is incompetent, irrelevant and immaterial, and 
does not adopt the correct test or mode of ascertaining 
or fixing the fees to be allowed. 
Motion overruled; to which ruling of the court, the 
defendant by its counsel, then and there duly ex- 
cepted. 


Cross-Examination by Mr. Chiperfield. | 


4976 My experience and I think the general rule here is dif- 
ferent from the one stated by Judge Lincoln. I rarely 
charge by the day and I think the bar here generally as 
a rule don’t charge by the day. Take into account when 
a law suit is finished the importance of the litigation, the 
time taken, the result of the litigation, and character of 
the defense you had to go up against and all those ques- 
tions, and then fix a gross sum which ought in fairness 
between you and the client to be the compensation 


1128 


charged. I have made this fee on that basis. For the 
services which were rendered in the active trial of this 
case | would say $65 to $100 a day for each lawyer. For 
the preparation of the case a higher compensation should 
4977 be allowed. It is customary to charge about the same. 
For the argument of a demurrer and the preparation of 
the declaration and of notices and all work applicable to 
many cases, I know of no rule that would entitle a person 
to multiply the total number of days, but I think more 
than 1/35th would be charged ordinarily by the lawyers 
according to the established usage of this bar where 
there were thirty-five cases. Where the same questions 
are presented there should be an apportionment, but 
4978 there should be more charged in view of the fact that a 
larger interest is involved in the particular law suit. 
Where a man prepared to try 100 cases and the main 
facts would be the same, the information which he has 
gained and elicited upon the investigation would be equal- 
ly applicable to ninety-nine others as well as the one in 
particular and in fixing the compensation where there 
has been a general preparation of that sort, the fact that 
there are other cases pending should also be taken into 
consideration. I would not undertake to fix the specific 
charge for the work of examining and going into court 
and arguing a demurrer because there are so many ele- 
ments that go into that matter, that I doubt whether any- 
body except the lawyer who actually performs the service 
could tell what that service was worth. I do not think 
there is any established custom with reference to a charge 
for services of that kind. Where the work takes two or 
three days I would say it was the same per day as the 
time for the trial of the case. Would think a fair per 
4980 diem for that work would be from $50 to $100 a day. 
4981 If a stock declaration is prepared and printed it 
thereafter becomes a question of merely filling in a de- 


1129 


scription. It might take a day or two but the work re- 
quired is almost purely clerical. The same with the 
notices except that each notice would require special at- 
4982 tention. Like the declaration, after you prepared a 
form that is good, the work is clerical. 
I am interested in two cases against the Sanitary Dis- 
trict. It is matter of complete indifference to me as to 
4983 what fee shall be allowed here. My firm was interested 
4984 in the case of Gentlemen vs. The Sanitary District which 
was tried six or eight months ago. I did not participate 
in the trial personally. No attorneys’ fees were fixed by 
the court, I think they have been fixed by agreement. 
4985 The other case that I referred to is the Utica Hydraulic 
Cement Company case and the land lies in the vicinity of 
the Village of Utica. 


L. W. Brewer, a witness called by the plaintiff, being 
sworn, testifies as follows: 


Direct Examination by Mr. O’Donnell. 


My name is L. W. Brewer, a member of the La Salle 

4987 County bar. Practiced since 1871. Am familiar with 

the usual and customary fees of attorneys for services in 

La Salle County. I heard the testimony as to fees in 
this hearing. 

(). Have you an opinion, Mr. Brewer, as to what would 
be the fair and reasonable fee according to the customary 
fees prevailing at this bar in the matter in hearing, as- 
suming that the services testified to by those four wit- 
nesses were rendered, and were necessary to the case? 
A. I think I have. 

@. What in your opinion would be such reasonable 
fee? 

Mr. CHIPERFIELD: We object to that on the ground it 
is Incompetent, irrelevant, and immaterial. No proper 


1130 


foundation has been laid, that it is not the proper test 
to apply in the ascertainment of the fees in this matter.’’ 
Objection overruled; to which ruling of the court, the 
defendant by its counsel, then and there duly ex- 
cepted. 


4988 A. Considering the importance of this case and the 
able and vigorous manner in which it was defended, as 
well as the able manner in which it was tried on the part 
of the plaintiff, and looking at the result and the time 
consumed in the trial, the number of witnesses, the num- 
ber of exhibits, maps, plats and photographs, I think that 
$6,000 is a very moderate fee indeed. 


Cross-Examination by Mr. Chiperfield. 


I think that would be a reasonable fee for the reasons 
testified to. I think $100 a day would be a moderate fee 
4989 for each attorney. I heard a part of the trial but am 
basing my testimony upon the testimony of the witnesses. 
4990 A reasonable fee for the argument of a demurrer that 
would require several days for preparation and a day 

in which to present it, which was applicable to some 
thirty or forty cases, the number of cases would make no 
difference. If a man hired me to defend him for mur- 

der today I would charge for that, and if I was hired by 
another man tomorrow I am not going to work for the 
second man for nothing because I had charged the first 
man. If I had forty clients or if I had one client with one 
case that I had to defend, or if I have forty different 
clients in forty different cases and forty different ques- 
tions, I would not work for thirty-nine for nothing be- 
eause I had charged one with what would be the reason- 
able service in that case. Where there is a declaration 
filed, a stock form printed declaration applying to a lot 

of litigation, my idea is for the day taken to file those 
4991 forty declarations there should be forty times the charge 


1131 


for filing one declaration. My idea is where a man comes 
in and argues a demurrer and it takes a day, and it is 
applicable to 40 cases, that he should charge each and 
every client for the day. I would charge each client for 

4992 the service that I rendered, one man as much as the 
other. ; 

4993 Mr. O’DonneLtLt: We desire to offer the files in the 
case In evidence, your Honor, including the verdict of the 
jury. 

Mr. CHIPERFIELD: We object to that as being incom- 
petent, irrelevant and immaterial. 

“Mr. O’Donnett: And that will close our evidence. 

Mr. Duncan: We also want the record to show that 
the motion for new trial has been overruled; that the mo- 
tion in arrest of judmgent has been overruled and that 
judgment on the verdict— 

The Court: Let me take up this one motion first. 

Mr. Duncan: Very well your Honor. 

Mr. CuHriperFIELD: When they get through with their 
case, I suppose somewhere—somewhere along the way 
we may put in something. 

Mr. Duncan: We are simply closing our part of the 
case, that is all. I am not closing yours. 

4994 The Court: I think I will overrule your objection, Mr. 
Chiperfield. | 

To which ruling of the court, the defendant by its 

counsel, then and there duly excepted. ) 


4995 Praecipe filed in this case January 14, 1905. 

4996 Summons in cause dated January 14, 1905, with return 
of service showing service on defendant. 

4997 Summons filed January 23, 1903. 

4998-5005 Declaration in said cause filed January 14, 1905. 

5006 Demurrer to declaration. 

5007 Filed in said cause March 15, 1905. 

5008 Amendment to declaration filed October 25, 1905. 


1132 


9009 Demurrer to amended declaration filed December 30, 
1908. 

D010 Plea general issue filed November 7, 1912. 

0011 Plea, statute of limitations filed November 7, 1912. 

0012-13 Plea, non-ownership, filed November 7, 1912. 

5014 Replications to pleas, filed November 7, 1912. 

9015 Rejoinder to plaintiff’s replications, filed November 
fir BACAR 

0016 Defendant’s fourth plea, filed November 7, 1912. 

9017 Demurrer to defendant’s fourth plea, filed November 
fee O12. 

5019 Amendment to declaration. Filed March 21, 1912. 

0020-21 Verdict of jury assessing plaintiff’s damages at 
the sum of thirty-five thousand dollars, filed December 7, 
1912. 

5022 The Court: That lets everything in the pleadings go 
in evidence. Now is there anything further? 

Mr. Duncan: Motion for new trial and the order over- 
ruling the same; motion in arrest of judgment and the 
order overruling the same; and the judgment itself when 
rendered by the court. 

Mr. CHIPERFIELD: Oh, well, now, we are not up to any 
judgment. Now there is the very place where we part 
the ways. Whenever they get through getting in these 
other matters we want to take up— 

The Court: Have you closed? 

Mr. O’Donnetu: Yes, your Honor, we close with those 
files. 

Mr. CureerFietp: If your Honor please— 

Mr. O’DonneELL: Just a minute. We rest your Honor. 

Mr. CurperFieLD: Now if your Honor please I want 
the record to show that no judgment having been ren- 
dered in this case as the basis for the assessment of any 
costs at the time of the introduction of this proof and 
at the time that we are called upon to put in our opposi- 


1133 


tion to this proof, that the defendant respectfully de- 
5023 clines to offer any testimony, and protests against any 
further hearing on the proof that has been offered. 

The Court: I think I will overrule the motion for a 
new trial and exception. 

To which ruling of the court, the defendant by its 
counsel, then and there duly excepted. 

Mr. CHIPERFIELD: Will you excuse me just a minute, 
your Honor. 

The Court: Yes. 

Mr. CurperFieELp: Before we get away from this mat- 
ter. Before we get away from this matter I want to 
complete whatever there is of it. I don’t know what 
there is, it has been a question in my mind ever since it 
began, and I want to be briefly heard upon the questions 
involved. 


The Court: Attorneys’ fees? 
Mr. CHIPERFIELD: Yes. 


The Court: I will give you an opportunity as to 
that. 


Mr. CHIPERFIELD: Yes, but 1 want, your Honor, this 
record to stand in the same condition when that time 
comes that it stands at this moment. I don’t believe your 
Honor wants to alter the situation here. 

The Court: No, sir. 

‘‘Mr. CHIPERFIELD: Yes. They insisted they wanted to 

5024 go ahead at this time and insisted that this was the time 
for the disposition of this matter. I don’t know what it 
is. I have listened to the testimony but I don’t know 
what itis. At least I am not advised from anything that 
I have seen or heard and I don’t want a different status 
of affairs to prevail when this matter is concluded than 
prevailed when it started. I think that we ought to dis- 
pose of this now, whatever it is. 


1134 


The Court: I think I will—do you care to say any- 
thing on the motion for a new trial now at this time? 


Mr. CuiperrieLp: Your Honor did overrule the mo- 
tion for a new trial the other day, did you not? 


The Court: I don’t know what the record shows. 


Mr. CurrerFIELD: Now, let us see, I have got the whole 
record here. 


“The Court: Read it Mr. Hull. 


Mr. O’Donneui: My recollection is everything was 
done except the entry of the final judgment. The motion 
in arrest was continued. 


‘‘Mr. CurperFietp: Mr. O’Donnell is correct, every- 
thing was done except the entry of the judgment upon the 
verdict. 


The Court: Motion for new trial was overruled and 
motion in arrest of judgment. 


Mr. CuiperFieLp: ‘That was my notion. 


5025 The Court: I presume that is so, that is my recollec- 
tion now but let us see what Mr. Hull has got. 


Mr. Hutu: Motion to set aside the verdict and mo- 
tion for new trial overruled. 


Mr. CuHIPerFIELD: Here is something that comes up 
before we get a judgment and I think it ought to be dis- 
posed of. 


The Court: You move for judgment? 

Mr. O’DonneEwL: Yes, I move for judgment. 
The Court: Yes, I move for judgment. 

“<The Court: You object to the motion? 

Mr. CurprerrietD: As much as we possibly can. 


The Court: Objection overruled. Judgment on the 
verdict, $35,000 and costs. 


1135 


Mr. CHIPERFIELD: Now we except to the judgment. 


The Court: And exception by the defendant. 
To which ruling of the court, the defendant by its 
counsel, then and there duly excepted. 


0026-33 Oral argument on behalf of defendant on question 
of assessment of attorneys’ fees as costs. 


5034-40 Oral argument on behalf of plaintiff on mec eres of 
taxing attorneys’ fees as costs. 


5041 Mr. Duncan: I want to call the attention of the court 
to the fact that on Saturday a week ago the minute book 
shows motion by plaintiff for an order fixing plaintiff’s 
attorneys’ fees and taxing same as costs. Motion by de- 
fendant for rule on plaintiff to file a bill of particulars on 
their claim for attorneys’ fees. Motion allowed and 
plaintiff ruled to file said bill of particulars by Tuesday 
next. Hearing of motion wm re attorneys’ fees set for 
Saturday morning commencing at 10:30. 


Mr. CuiperFieLp: If your Honor please, if judgment 
has been entered, before anything further is done we now 
desire to pray an appeal to the Supreme Court of the 
State of Illinois. 


The Court: I will dispose of this other matter first. 


5042 Whilst the verdict is large and finds warrant perhaps 
in only a favorable view of the evidence for the plain- 
tiff, it seems as though I ought not to put the limit on 
this end of the trial for attorney’s fees. I believe that 
the services in this case are worth anywhere from $3,500 
to $5,000. That appeals to my conscience, to my view of 
fair dealing as.a lawyer and as a judge, but anything be- 
low that or anything above that seems out of proportion 
to my view of things. 

I believe that the price of things in this state with 
which attorney’s fees can be compared and contrasted, 


1136 


warrant that, and even on that basis anything above 
$5,000 is an extreme view of the situation under this tes- 
timony. I am afraid that anything more than $5,000 is 
not warranted and I would feel as if I had not the cour- 
age to state what I think about this trial. I know that 
in the course I am about to take, and what I have said, 
that I subject myself to criticism of everybody present 
to the effect that ‘‘Your Honor knows you have no evi- 
dence to justify it.’’ I understand that and that is what 
causes me to hesitate. I know it is my duty as a judge 
to follow the evidence. But I fix these attorney’s fees 
at $5,000 and they may be taxed as a part of the costs 
against the defendant, and exception by the defendant. 
Order of court fixing attorneys’ fees of plaintiff at $5,000, 
to be taxed as costs. 
To which ruling of the court, the defendant by its 
counsel, then and there duly excepted. 


0045 Prayer for appeal to the Supreme Court of the State 
of Illinois by defendant. Motion granted. Bill of excep- 
tions to be filed in 60 days. Separate bill of exceptions 
allowed upon matter of attorneys’ fees to be filed within 
30 days. Prayer for appeal to the Appellate Court from 
the order granting attorneys’ fees. Motion granted. 

5046-7 Discussion as to requiring defendant to give bond on 
appeal, resulting in the conclusion being reached that no 
bond would be required. 


5048 Signature S. C. Stough, judge of the 13th Judicial Cir- 
euit, State of [llinois, to the bill of exceptions herein this 
18th day of January, A. D. 1913. 


Certificate of S. C. Stough, judge, of the tendering of 

bill of exceptions to him on the 18th day of January, 1913. 

5049 Certificate of authentication, clerk of the Circuit Court, 
La Salle County, to record. 


5050 Assignment of errors. 


1137 


STATE OF ILLINOIS IN THE SUPREME CouRT. 


April Term, A. D. 1913. 


The La Salle County Carbon Coal 
Company, a Corporation, 
Appellee. 


US. 
g Case. 


A Municipal Corporation, 


The Sanitary District of Chicago, | 
Appellant. 


ASSIGNMENT OF ERRORS. 


And now comes the Sanitary District of Chicago, a 
municipal corporation, appellant herein, and shows to the 
court that there is manifest error in the record herein in 
this viz: 

1. The lower court erred in sustaining the plaintiff’s de- 
murrer to defendant’s fourth plea. 


2. The lower court erred in refusing leave to the defend- 
ant to file a plea of nul tiel corporation. 


3. The lower court erred in admitting on the trial im- 
proper and incompetent evidence over the objection of 
the defendant. 


4. The lower court erred in refusing to admit upon the 
trial proper and competent documentary evidence 
offered by the defendant. 


5. The lower court erred in refusing to admit upon the 
trial proper and competent oral testimony offered by 
the defendant. 


6. The lower court erred in admitting as evidence upon 
the trial Exhibits 1, 3,-4, 5, 6, 7, 8, 9, 10, 11, 12, 1353145 
15, 16, 17, 18, 19, 20 and 21, offered by the plaintiff over 
the objection of the defendant. 


e 


1138 


7. The lower court erred in improperly restricting the 
eross-examination by defendant of the witnesses who 
testified on behalf of the plaintiff. 


8. The lower court erred in not properly restricting the 
cross-examination by the plaintiff of the witnesses who 
testified upon behalf of the defendant. 


9. The lower court erred in refusing to allow the de- 
fendant to make proper proof of facts specified in cer- 
tain offers appearing in the record after sustaining an 
objection by plaintiff to questions having for their pur- 
pose eliciting of such testimony. 


10. The lower court erred in refusing to exclude from 
the evidence in this case plaintiff’s Exhibit 1, as re- 
quested by the defendant in its motion at the conclu- 
sion of evidence upon behalf of the plaintiff. 


11. The lower court erred in refusing to exclude from 
the evidence in this case plaintiff’s Exhibit 2, as re- 
quested by defendant in its motion at the conclusion 
of taking of evidence upon behalf of the plaintiff. 


12. The lower court erred in refusing to exclude from 
the evidence in this case Plaintiff’s Exhibit 3, as re- 
quested by defendant in its motion at the conclusion 
of taking of evidence upon behalf of the plaintiff. 


13. The lower court erred in refusing to exclude from 
the evidence in this ease Plaintiff’s Exhibit 4, as re- 
quested by the defendant in its motion at the conclu- 
sion of the taking of evidence upon behalf of the plain- 
tiff. 

14. The lower court erred in refusing to exclude from 
the evidence in this case Plaintiff’s Exhibit 5, as re- 
quested by the defendant in its motion at the conclu- 
sion of the taking of evidence upon behalf of the plain- 
tiff. 


1139 


15. The lower court erred in refusing to exclude from 
the evidence in this case Plaintiff’s Exhibit 6, as re- 
quested by the defendant in its motion at the conclu- 
sion of the taking of evidence upon behalf of the plain- 
tiff. 

16. The lower court erred in refusing to exclude from 
the evidence in this case Plaintiff’s Exhibit 7, as re- 
quested by the defendant in its motion at the conclu- 
sion of the taking of evidence upon behalf of the plain- 
tiff. 

17. The lower court erred in refusing to exclude from 
the evidence in this case Plaintiff’s Exhibit 8, as re- 
quested by the defendant in its motion at the conclu- 
sion of the taking of evidence upon behalf of the plain- 
tiff. 

18. The lower court erred in refusing to exclude from 
the evidence in this case Plaintiff’s Exhibit 9, as re- 
quested by the defendant in its motion at the conclu- 
sion of the taking of evidence upon behalf of the plain- 
tiff. 

19. The lower court erred in refusing at the conclusion 
of the plaintiff’s case to grant the several motions 
made by defendant to exclude the testimony specified 
therein from the consideration of the jury. 


20. The lower court erred in denying the motion of the 
defendant at the close of plaintiff’s case to strike from 
the record the testimony of the following witnesses, 
viz: Joseph Greiner, Henry Ream, Henry Meyer, 
Charles Mudge, Edward Pyka, Charles Castendyck, 
Otto Halm, Fred A. Mudge, M. J. Charley, Abram Vor- 
hees and Charles Dooley. 

21. The lower court erred in denying the motion of the 
defendant made at the conclusion of plaintiff’s case to 
strike from the record the testimony of the various 


1140 


witnesses specified with reference to the overflow of 
plaintiff’s premises, injury to, condition of, or values 
of crops thereon, or the use to which said premises 
were put since January 17, 1900. 


22. The lower court erred in denying the motion of the 
defendant at the conclusion of plaintiff’s case to strike 
from the record testimony of various witnesses speci- 
fied with reference to any injury to crops upon the 
premises claimed by plaintiff for the years 1902 to 
1912, both inclusive. 


23. The lower court erred in granting the motion of the 
plaintiff to strike from the declaration certain lands 
specified in said motion without requiring an amend- 
ment of the declaration. 


24, The lower court erred in permitting plaintiff to en. 
ter a disclaimer as to certain lands described in plain- 
tiff’s declaration. 


25. The lower court erred in denying the motion of 
the defendant to exclude, at the close of plaintiff’s case, 
the testimony of certain witnesses specified therein for 
the reason that said testimony constituted a variance 
between the allegations of the declaration and the proof. 


26. The lower court erred in submitting to the jury the 
issues in the case without requiring plaintiff to amend 
the declaration and to eliminate therefrom the real es- 
tate which was excluded by the court from the con- 
sideration of the jury or by the voluntary act of the 
plaintiff in disclaiming as to such real estate. 


27. The lower court erred in denying the motion of the 
defendant at the conclusion of plaintiff’s case to in- 
struct the jury to find the defendant not guilty under 
the first count of the declaration. 


28. The lower court erred in denying the motion of the 
defendant at the conclusion of plaintiff’s case to in- 


1141 


struct the jury to find the defendant not guilty under 
the second count of the declaration. 


29. The lower court erred in denying the motion of the 
defendant at the conclusion of plaintiff’s case to in- 
struct the jury to find the defendant not guilty under 
the third count of the declaration. 


30. The lower court erred in denying the motion of the 
defendant at the conclusion of the taking of testimony 
upon behalf of the plaintiff to instruct the jury -to 
return a verdict finding the defendant not guilty. 


31. The lower court erred in refusing to sustain objec- 
tions of the defendant to improper remarks of counsel 
for plaintiff made in his opening statement to the jury, 
to the refusal of which the defendant duly excepted. 


32. The lower court erred in sustaining objections of 
the plaintiff to certain parts of the opening statement 
made by counsel for the defendant. 


33. The lower court erred in failing to sustain the ob- 
jection of defendant to the improper conduct of plain- 
tiff’s counsel while plaintiff’s opening statement was 
being made to the jury. 

34. The conduct of counsel for plaintiff on the hearing 


in the presence of the Jury was improper and duly ex- 
cepted to by the defendant. 

35. Counsel for plaintiff made improper remarks dur- 
ing the trial in the presence of the jury which were 
duly objected to by the defendant. 

36. The closing argument of counsel for plaintiff was 
improper in the particular objected to by the defend- 
ant. | 

37. The conduct of plaintiff’s counsel in reference to 
the Jury was improper. 


38. The lower court erred in refusing to hear the rea 


1142 


sonable argument of counsel for defendant upon mat- 
ters of law involved in the suit when requested so to 
do by said counsel and in arbitrarily refusing oppor- 
tunity to counsel for defendant to present such argu- 
ment. 


39, The lower court erred in refusing to allow proof of 
the several offers of proof made by the defendant upon 
the trial. 


40. The lower court erred in refusing to sustain the 
objections interposed by defendant to questions and 
answers specified in the depositions read on the trial. 


41. The lower court erred in admitting in evidence over 
the objection of defendant the various exhibits referred 
to in the depositions read on trial. 


42. The lower court erred in striking from the record 
over the objection of defendant portions of the testi- 
mony contained in answers of the witnesses being exam- 
ined by the defendant. 


43. The lower court erred in refusing to grant motions 
of the defendant to strike from the record certain 
portions of answers of witnesses being examined by 
the plaintiff. 


44. The lower court erred in adopting on the trial an 
improper rule as to the measure of damage, over the 
objection of defendant. 


45. The lower court erred in restricting proof as to the 
eondition of lands described in the declaration to a 
period subsequent to January 1, 1883, of its own mo- 
tion. 

46. The lower court erred in denying to the defendant 
the right to prove the fair cash market value of the 
premises deseribed in the declaration at the time of 
the trial. 


1145 


47. The lower court erred in refusing to admit as evi- 
dence the charter of the plaintiff corporation offered in 
evidence by the defendant. 


48. The lower court erred in allowing the witness Hazen, 
over the objection of defendant, to testify as to his 
mental processes in reaching a conclusion as to the 
value referred to in the statement made to R. G. Dun 
& Company by the witness and introduced in evidence 
by the defendant. 


49. The lower court erred in allowing witnesses for the 
plaintiff in giving an opinion as to the fair cash mar- 
ket value of real estate described in the declaration, to 
take into consideration matters known only to them- 
selves, existing up to the time of the trial, and con- 
cerning which there was no testimony in the record, 
over the objection of defendant. 


50. The plaintiff on the trial failed to prove ownership 
of the real estate described in its declaration. 


51. The lower court erred in denying the motion of de- 
fendant at the conclusion of the taking of testimony 
to instruct the jury under the first count of the dec- 
laration to return a verdict of not guilty. 


52. The lower court erred in denying the motion of de- 
fendant at the conclusion of the taking of testimony on 
the trial to instruct the jury under the second count 
of the declaration to return a verdict of not guily. 


53. The lower court erred in denying the motion of de- 
fendant at the conclusion of the taking of testimony 
on the trial to instruct the jury under the third count 
of the declaration to return a verdict of not guilty. 


04. The lower court erred in denying the motion of de- 
fendant at the conclusion of the taking of testimony 
on the trial to instruct the jury to return a verdict 
finding the defendant not guilty. 


1144 


do. The lower court erred in giving to the jury instruc- 
tions 1 to 20, both inclusive, requested on the part of 
the plaintiff. 


56. The lower court erred in refusing to give to the jury 
instructions numbered 45 to 80, both inclusive, re- 
quested on behalf of the defendant. 


o7. The damages awarded by the jury are excessive and 
the result of passion, prejudice and mistake upon the 
part of the jury. 

58. The verdict of the jury is contrary to the law and 
the evidence. 


d9. The verdict of the jury is contrary to the evidence. 
60. The verdict of the jury is contrary to the law. 


61. The lower court erred in improperly instructing the 
jury as to the form of a verdict finding for the plain- 
tiff. 

62. The lower court erred in making improper remarks 
during the trial in the presence and hearing of the jury, 
which remarks were duly excepted to by the defendant. 


63. The lower court erred in denying the motion of de- 
fendant to exclude the deposition of the witness E. L. 
Cooley. 


64. The lower court erred in overruling the motion of 
the defendant to strike from the record the testimony 
of the witness EK. L. Cooley respecting matters covered 
by his deposition read upon the trial. 


65. The lower court erred in overruling the motion of 
defendant to exclude from the consideration of the jury 
various portions of the real estate claimed by the de- 
fendant as specified in its said motion. 

66. The lower court erred in improperly permitting the 
witness Hazen to alter and change the effect of the 
statement made by him on behalf of the plaintiff in 


1145 


this case to Rk. G. Dun & Company by stating to the 
jury what was his secret intention and _ undisclosed 
meaning at the time he so made said statement, thus 
changing the effect of said statement by undisclosed 
mental reservations of said Hazen at said time. 


67. 'The lower court erred in allowing several witnesses 
for plaintiff to testify over objection of the defendant 
to the fair cash market value of the surface only of 
the real estate claimed by the plaintiff instead of stat- 
ing an opinion as to the fair cash market value of the 
entire real estate described in plaintiff’s declaration. 


68. The lower court erred in overruling the motion by 
the defendant for judgment non obstanti veredicto. 


69. The lower court erred in refusing to set aside the 
verdict of the jury and to grant unto the defendant 
a new trial. 


70. The lower court erred in overruling the motion of 
the defendant in arrest of judgment. 


71. The lower court erred in entering judgment on the 
verdict against the defendant for $35,000 and costs of 
suit. 


72. The lower court erred in entertaining the motion of 
the plaintiff to tax as costs and attorney’s fee in said 
suit and to proceed to a hearing upon said motion be- 
fore the entry of judgment in said cause on the ver- 
dict against the defendant. 


73. The lower court erred in denying the motion of the 
defendant upon the hearing of the motion to tax an 
attorney’s fee for plaintiff as costs in said suit to re- 
quire the plaintiff to file a more specific bill of par- 
ticulars and to grant unto the defendant a continuance 
upon the hearing of said motion until such more spe- 
cific bill of particulars had been filed. 


74. The lower court erred in overruling the protest of 


1146 


the defendant against being compelled to take up the 
motion of plaintiff for the taxation of an attorney’s 
fee for the plaintiff as costs before the entry of judg- 
ment in said cause upon the verdict of the jury. 


75. The lower court erred upon the hearing upon the 
question of the taxation of an attorney’s fee for plain- 
tiff as costs in admitting in evidence plaintiff’s Ex- 
hibit 1, on said hearing in the absence of a showing 
that proof had been made on the trial that plaintiff 
notified the trustees of the defendant in writing at 
least 60 days before suit was commenced, by leaving a 
copy of such notice with some one of the trustees of 
such district, stating the amount claimed as damages, 
and so forth, over the objection of the defendant. 


76. The lower court erred in admitting incompetent and 
improper evidence at the hearing before the court on 
the motion for the allowance of an attorney’s fee for — 
plaintiff to be taxed as costs over the objection of the 
defendant. 


77. The lower court erred in excluding competent testi- 
mony sought to be introduced by the defendant at the 
hearing before the court on a motion for an allowance 
of an attorney’s fee to be taxed as costs. 


78. The lower court erred in refusing to strike from 
the record the improper evidence upon the motion of 
the defendant upon the hearing of plaintiff’s motion 
to tax an attorney’s fee as costs. 


70. The lower court erred on the hearing before the 
court on the motion of plaintiff to tax an attorney’s 
fee as costs in permitting the witnesses over the ob- 
jection of the defendant to adopt an improper stand- 
ard and test in estimating the value of the services 
of plaintiff’s attorneys. 


1147 


80. The lower court erred in taxing as costs any amount 
as an attorney’s fee for the plaintiff’s attorney. 


81. The order of the lower court taxing as costs an 
attorney’s fee for plaintiff’s attorneys is contrary 
to the law. 


82. The order of the lower court taxing as costs an at- 
torney’s fee for plaintiff’s attorneys is contrary to the 
evidence. 


83. The order of the lower court in taxing as costs an 
attorney’s fee for plaintiff’s attorneys is manifestly a 
result of prejudice upon the part of the presiding judge 
and is and was excessive in amount. 


84. The lower court erred in refusing to entertain the 
prayer of the defendant for an appeal to this court 
from the judgment entered in the trial court before 
-ordering the taxation of costs as an attorney’s fee for 
plaintiff’s attorneys. 


89. That part of Section 19 of ‘‘An Act to Create Sani- 
tary Districts and to remove obstructions in the Des- 
plaines and Illinois Rivers,’’ approved May 29, 1888, 
in force July 1, 1889, laws 1889, page 126, as amended 
by ‘‘An Act to Amend Sections 4, 8, 9, 11, 12 and 19, of 
An Act to Create Sanitary Districts and to remove 
obstructions in the Desplaines and Illinois Rivers,’’ ap- 
proved May 25, 1907, in force July 1, 1907, laws 1907, 
pages 284-287, providing that in case judgment is ren- 
dered against any such district for damages the plain- 
tiff shall also recover his reasonable attorney’s fee 
to be taxed as costs of suit, is repugnant to Section 1, 
of the 14th Amendment of the Constitution of the 
United States. 


86. . That part of Section 19 of ‘‘An Act to Create Sani- 
tary Districts and to remove obstructions in the Des- 
plaines and Illinois Rivers,’’ approved May 29, 1889, 


1148 


in force July 1, 1889, laws 1889, page 126, as amended 
by ‘‘An Act to amend Sections 4, 8, 9, 11, 12 and 19 of 
An Act to Create Sanitary Districts and to remove ob- 
structions in the Desplaines and Illinois Rivers,’’ ap- 
proved May 25, 1907, in force July 1, 1907, laws 1907, 
pages 284-287, providing that in case judgment is ren- 
dered against any such district for damages, the plain- 
tiff shall also recover his reasonable attorney’s fee to 
be taxed as costs of suit, is repugnant to section 2, of 
Article 2, of the Constitution of the State of Illinois. 

87. That part of Section 19 of ‘‘An Act to Create Sani- 
tary Districts and to remove obstructions in the Des- 
plaines and Illinois Rivers,’’ approved May 29, 1889, 
in force July 1, 1889, laws 1889, page 126, as amended 
by ‘‘An Act to amend Sections 4, 8, 9, 11, 12 and 19, of 
An Act to Creat Sanitary Districts and remove ob- 
structions in the Desplaines and Illinois Rivers,’’ ap- 
proved May 25, 1907, in force July 1, 1907, laws 1907, 
pages 284-287, providing that in case Judgment is ren- 
dered against any such district for damages, the plain- 
tiff shall also recover his reasonable attorney’s fee 
to be taxed as costs of suit, is repugnant to Section 
22 fo Article 4, of the Constitution of the State of 
Illinois. 


88. That part of Section 19, of ‘‘An Act to Create Sani- 
tary Districts and remove obstructions in the Des- 
plaines and Illinois Rivers,’’ approved May 29, 1889, 
in force July 1, 1889, laws 1889, page 126, as amended 
by ‘‘An Act to amend Sections 4, 8, 9, 11, 12 and 19, of 
an Act to Creat Sanitary Districts and to remove ob- 
structions in the Desplaines and Illinois Rivers,’’ ap- 
proved May 25, 1907, in force July 1, 1907, laws 1907, 
pages 284-287, providing that in-case judgment is ren- 
dered against any such district for damages, the plain- 
tiff shall recover his reasonable attorney’s fees to be 


1149 


taxed as costs of suit, is repugnant to the Fifth Amend- 
ment of the Constitution of the United States. 


89. The lower court erred in awarding plaintiff execu- 
tion on the judgment entered against the defendant, a 
municipal corporation. 


Wherefore for the reasons above set forth, which the 
record will sustain, the judgment of said court ought to 
be reversed and said cause remanded. 


Epmunp D. Apcock, 
Burnet M. CHIPERFIELD, 


Attorneys for Appellant. 
Frank J. Quinn, 


CLAuDE I). CHIPERFIELD, 
Of Counsel for Appellant. 












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